The Right To Defend (Provided the Government Approves)

The “gay panic defense” never made much sense to me. It seemed inconceivable that any jury would buy it.

A defendant using the defense claims they acted in a state of violent temporary insanity because of unwanted same-sex sexual advances. The defendant alleges to find the same-sex sexual advances so offensive and frightening that it brings on a psychotic state characterized by unusual violence.

Yet, it succeeded on more than a few occasions. It’s a pure play to anti-gay prejudice, plus some junk science, that allowed men to get away with murder. It was, without a doubt, a terrible defense and a terrible reflection of societal prejudice.

And so the statutory eradication of this offense should be cause for celebration, not just by the gay community and its supporters, but by anyone who doesn’t harbor hatred against gay people. And frankly, what the hell do you care what other people do in the privacy of their own room anyway.

But as bad as the gay panic defense is, and it is, its eradication by statute presents a problem.

In 2006, California amended its penal code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys’ offices about panic strategies and how to prevent bias from affecting trial outcomes.

The California jury instruction, while facially contradictory to issues such as jury nullification, also covered such matters as white men being acquitted for killing black men based on racism. Whether this should have been objectionable is a matter of perspective: there aren’t a lot of people who would argue that verdicts based on prejudice are a good way to run a legal system.

But some states took a different view and expressly forbade the “gay panic defense.” In USA Today, the claimed rise in anti-gay attacks has renewed the call for the eradication of the defense.

“It is long past time that every state ban perpetrators of violent crimes from asserting a victim’s LGBTQ identity as a potential defense for their violent actions,” said Xavier Persad, senior legislative counsel at the Human Rights Campaign.

In 2013, the American Bar Association approved a resolution calling on all state legislatures to prohibit the practice. California was the first to adopt a ban in 2014; Illinois followed in 2017; Rhode Island in 2018.

It’s hard to imagine anyone arguing against this proposition and in favor of the gay panic defense. But at the same time, there’s that nasty Sixth Amendment problem lurking in the background, providing that every defendant is afforded the right to a defense. Does this mean the defendant has a constitutional right to present whatever defense he chooses, or only those defenses that have the government stamp of approval?

When I raised this issue, lawprof Anthony Michael Kreis replied:

States have the prerogative to establish the elements of crimes and defendants are not shielded from instructions to the jury to disregard prejudicial, specious claims. See, Montana v. Egelhoff, 518 U.S. 37 (1996) (upholding a statute excluding voluntary intoxication defense).

While this may be weak from the elements side, he’s got a point about Egelhoff, a Scalia opinion (in which Ginsburg joined) holding that the Due Process Clause isn’t violated by a statute providing that “voluntary intoxication ‘may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense.'” His rationale was as dubious and result-oriented as it gets:

Although the rule allowing a jury to consider evidence of a defendant’s voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy commonlaw tradition which remains supported by valid justifications today.

But while this is the law because the Supreme Court says so as to the highly specific defense of voluntary intoxication, does that mean it’s now fair game to legislate what other defenses should be taken off the table?

If the gay panic defense can be legislated out of existence, does that open the door to other defenses which may be socially reprehensible but effective? It’s entirely understandable why this defense would be repugnant, deserving of special treatment provided that any defense can be eradicated consistent with due process and the Sixth Amendment. But if so, what rules determine defenses so repugnant that the law will not permit them to be raised?

Would I, in defense of a killer, use the gay panic defense? If it was tactically viable, absolutely. My duty isn’t to political correctness, social justice or any other cause, but to the zealous defense of my client, and anything within the bounds of the law that would serve the defendant’s interest would be on the table, my personal feelings about it notwithstanding.

Is this wrong? Clearly not from the perspective of the duty of a criminal defense lawyer, which is why states have enacted laws precluding it, so that such a reprehensible defense cannot be proffered at trial. Society may well have good reason to prohibit defenses that offend our sensibilities, but then, what of the defendant’s constitutional right to present his defense, even if it’s awful? Does he not get to tell the jury why he did what he did, even if his reasons are bad? Does he not get to explain that he’s a horrible human being, but acted the way he did for a reason?

It’s not that the gay panic defense should, on its own merits, find acceptance in court, but that any defense be taken off the table by legislation. Just as it’s wrong to kill someone because of prejudice against homosexuality, it’s wrong to deprive someone of their constitutional right to present whatever defense they have, even if it’s a socially repugnant defense. And if it is, the best answer would be that the jury will reject it as no defense to the crime.

16 thoughts on “The Right To Defend (Provided the Government Approves)

    1. DaveL

      I want to take your word for that, really I do, but first I need to see your Oath of Office and check your flag for a fringe.

    2. B. McLeod

      In Tax Court, they aren’t really “defenses,” because the taxpayer has to be “Petitioner.”

    1. B. McLeod

      Your comment, though cursory, raises a good point. The proponents of “banning” this theory have treated it as though the defendants committed premeditated murders but are essentially asking the jury to nullify on the basis of a prejudice-based theory that the decedent needed killing. The more usual fact pattern is that the defendants in these cases acted on an irrational impulse, which normally would be a basis to convict for a lower level or degree of homicide. Whether it was based on “prejudice” or not, irrational impulse is a less culpable intent than intentional premeditated murder. So, what the “banners” are really seeking to accomplish in these cases is to convict defendants of a higher degree of homicide than their mental state warrants, because the irrational impulse was tied to a “prejudice,” and so, the defendant needs to be punished for the prejudice. This strikes me as poorly reasoned and inconsistent with the established rationale for distinguishing among the various degrees of homicide.

      1. SHG Post author

        On the other hand, do you buy that revulsion to homosexuality really causes an “irrational impulse” to murder? Many things disgust me, but thus far I’ve avoided killing anyone over them. I’m not that special.

        1. B. McLeod

          For some people, probably. I don’t think it is just their revulsion to homosexuality, but they freak out about why they are attracting the advances (also, in a few of the cases, the defendants had sex with the decedent before they figured it out). As with everything, the jury has to figure out whether the defendant really was in a diminished mental state. But the point of the ban is to not care, because if the defendant’s diminished mental state was caused by “prejudice” the defendant should be punished for that alternative reason. Plus, they should get life plus cancer because the “prejudice” made it a “hate crime.”

    1. Hal

      Oh, well played! That made my day…

      “But you got to admit that sweet, sweet, jelly’s so good.”

  1. Neil

    The Bad Law and Worse “Law” that provide a defense for Tamir Rice’s basically Reasonable Murder, cannot be taken off the table by legislation?

    1. SHG Post author

      The Reasonably Scared Cop Rule was established in Graham v. Connor, a Section 1983 case. Cops would still be entitled to use self-defense, and would likely still be given greater latitude by a jury because of their job.

  2. angrychiatty

    You then can run into situations where the trial judge won’t let you make certain arguments or ask certain questions because he thinks (stupidly) that it “sounds like” a prohibited defense.

  3. Matthew Scott Wideman

    Call me a bigot. But, everything should be on the table for an accused persons defense. Let the jury sort it out. This reminds me of tort reform (I know it’s civil and not criminal). Taking certain issues out of the jury’s hands has not strengthened our system of Justice or the public’s perception of Justice (which maybe more important). The jury should be able to hear any defense and make their decision based upon it.

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