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“Gay Panic” Defense Falling Out of Favor, Little Used by Criminal Defense Lawyers

Murder suspects have been known to offer desperate pleas in order to escape punishment, the most popular of which is typically “temporary insanity.” However, there’s one offshoot of the insanity plea that may finally be fading away into the history books.

It’s called “gay panic,” and the defense involves claiming that the suspect went insane because they were propositioned or engaged in sexual or romantic overtures by a homosexual. The legitimacy of the defense harks back to the 1920s, when psychiatrists defined a phenomenon of acute and violent aggression caused by unsolicited overtures by a member of the same sex.

Since its medical definition, criminal defense attorneys have been using it to explain away conduct of their clients, including murder, as a knee-jerk response to these unsolicited propositions. Typically, only cases in which the person strongly believed that he or she would be sexually assaulted are counted as legitimate in the eyes of the law, meaning that the original meaning of violently reacting to a sexual advance no longer holds validity.

Several high-profile murder cases have involved a gay panic defense, the most notorious of which was the murder of University of Wyoming student Matthew Shepard in 1999. Shepard was abducted and beaten by two men posing as gay men after accepting a ride from a bar, and left to die in a field. His murderers initially tried to plead that they were so enraged by Shepard’s proposition that they killed him. The judge, however, ruled that Wyoming law did not allow what amounted to a “temporary insanity” plea under its statutory insanity defense.

Another high profile case was one that involved two guests on The Jenny Jones Show. A man killed his best friend after a taping of an episode of the show on which his friend revealed his secret attraction for him. The suspect confessed to the crime but said that his friend’s revelation angered him to the point of violence. The judge, however, rejected the defense, noting that waiting three days to commit the crime did not show evidence of violent temporary psychosis.

As these cases demonstrate, using the “gay panic” defense is a very difficult feat to accomplish. In the mentioned instances, it seems that it was used in place of a more common “temporary insanity” plea because the more common plea was impossible to prove (or else the suspect’s defense lawyer would likely have pursued that line of defense).

There are reasons why the use of “gay panic” defense as a criminal defense is becoming rarer, and the difficult of proving its validity is increasing. The medical establishment no longer classifies homosexuality as a psychiatric disorder, and social acceptance of homosexuality has become widespread to the point that most attorneys do not think it plausible that all members of a jury would likely sympathize with a violent reaction to a sexual advance (unless, of course, sexual assault was threatened).

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