Panic! as a Defense: Our Murderers are not Our Victims

Originally published to Chosen Magazine on May 16, 2018.

By Evan Brechtel

In the first days of May, James Miller, the 69-year-old defendant who stabbed 32-year-old Daniel Spencer to death when Spencer allegedly made advances toward him, was found guilty of manslaughter instead of murder. A Texas jury bought the argument that a same-sex advance was enough to induce a temporary insanity which drove Miller to kill Spencer.  As a result, he’ll serve only six months of jail time (the maximum for this particular charge) followed by ten years of probation. The sentence indicates that despite decades of waning legitimacy, gay and trans panic defenses still maintain a level of jurisprudence in a court of law.

The phrase “homosexual panic” was coined by Edward J. Kempf in 1920. Framed not as a legal defense, but as a mental health disorder brought on by the suppression of latent same-sex attraction, Kempf described the condition as “panic due to the pressure of uncontrollable perverse sexual cravings.” Needless to say, this was when same-sex attraction was still thought to be a mental illness. When the American Psychiatric Association removed homosexuality from its list of mental disorders in 1973, it was no longer considered a mental disorder and defense attorneys couldn’t viably argue insanity due to latent same-sex attraction. As a result, they stopped citing the defendant’s latent homosexuality and began characterizing the nonviolent, unwanted advances of the victim as an external factor triggering the defendant’s revulsion of homosexuality and leading them to temporary insanity.

It’s thankfully rare (moreso for gay men than trans women) that this defense holds water in court. A judge barred use of it in the 1995 Matthew Shepard trial and the American Bar Association passed a resolution against it in 2013. California and Illinois have barred the defense all together. It says something ominous about the current climate of this country that the defense would suddenly gain ground despite decades of momentum against it. But as the Miller case has shown, queer people’s lives still aren’t consistently considered equally valuable by a jury of their peers. As a result, gay and trans panic defenses take advantage of the implicit biases of a jury, stoking fires of attitudes which will pervade long after a verdict is issued.

In the UCLA Law Review, David Alan Perkiss addressed the implicit bias on which panic defenses depend following the trial of Brandon McInerney, 14, for the 2008 murder of his classmate Lawrence King. McInerney, reportedly intimidated by King’s sexuality and gender expression, shot King twice in the back of the head after school. Despite the violence of the act and ample evidence that the murder was premeditated, McInerney’s lawyers were able to argue that King, 15, displayed a sexual aggression which drove McInerney into a dissociative state. The defense worked, and as a result, the jury couldn’t reach a verdict. Before a second trial could commence, McInerney reached a plea deal with prosecutors in which he pled guilty for manslaughter.

“Social science research on implicit bias illuminates a likely explanation for the jurors’ belief that King was sexually aggressive,” Perkiss explains. “Although the jurors were not openly homophobic, it is likely that they harbored at least subconscious antigay bias. Specifically, the bias would have included the common homophobic stereotype that gay males are promiscuous and sexually aggressive. Even if the stereotype were true for all gay males, a homosexual advance fails to explain a homicidal reaction by the target of that advance.” As Prentiss states, there was little evidence that King was sexually aggressive, especially contextualized by his fledgling sexual identity and gender expression, as well as being a constant target of bullying. Nevertheless, prosecutors could not be certain a jury would consider it murder.

Trans people, despite being more vulnerable to hate crimes than gay men and despite enormously higher murder rates than others in the queer community, have been met with little vindication as well. When trans woman Gwen Araujo was brutally beaten to death by Mike Magidson, Jason Cavarez, and Jose Merél in 2005, the first trial resulted in a hung jury and, though Magidson and Merél were later convicted of second degree murder in a subsequent trial, the jury still returned unable to reach a verdict in regards to Cavarez, who later pled no contest to, you guessed it: manslaughter. Merél was granted parole in 2016.

Unlike gay men, trans women are routinely accused of somehow deceiving or “trapping” their partners with what is falsely perceived to be an imitation of womanhood. As is typical with panic defenses, the idea of “trapping” blames the victims for their murders and hinges on the lie that trans women aren’t real women. Islan Nettles was beaten to death in 2013 by James Dixon, who said:  “I just don’t wanna be fooled. My pride is at stake.” He had flirted with her, then beat her to death upon discovery that she was trans, testifying that he’d gone into a “blind fury” because Dixon felt his “manhood was in question.” Despite turning himself in three times, he wasn’t indicted for two more years, and although he’s currently serving a twelve year prison sentence, the charge was still only for manslaughter in the second degree. Many, including the mother of Islan Nettles, feel the sentence was too lenient.

Why are juries of our peers so eager to rationalize the actions of our murderers; to legitimize the irrational fear of our existence? Why are queer advances seen as more traumatic than the unwanted advances cis straight men routinely impose on women everywhere from the train to the street to the workplace? As long as gay/trans panic defenses maintain jurisprudence, queer people are potentially disposable under the law. As long as murderers can take refuge under the shelter of a manslaughter charge, our lives are not of equal value. From rapists to murderers, it’s time the courts stop kowtowing to the fragile masculinity and erratic violence of belligerent straight cis men.

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