First appeared Nov. 10, 1999, in the Chicago Free Press.
THE LARAMIE, WYO., TRIAL of Aaron McKinney for the murder of Matthew Shepard came to a rapid conclusion when Wyoming District Judge Barton Voigt ruled that the defense could not introduce testimony to support a "gay panic" defense.
The "gay panic" defense, Voigt said, amounted to saying that because of an (alleged) sexual approach by Shepard, McKinney either became temporarily insane and unable to control his behavior, or that the approach at least caused McKinney to have a "diminished capacity" for controlling his behavior.
Neither of those defenses has standing in Wyoming law, the judge pointed out.
Having little or nothing else to offer, the defense quickly rested its case and McKinney was found guilty of felony murder, kidnapping and aggravated robbery.
Voigt's decision to disallow a "gay panic" defense applies only in Wyoming, but it provides an important statement of what is wrong with that defense. We can hope that Voigt's reasoning will help kill off the defense elsewhere as well.
For eons heterosexual males have been able to get away with beating up, even killing gay men (and often robbing them) by offering the excuse that the gay man "came on to me," relying on courts to believe them (You know how predatory those homosexuals are!) and to think that violence is a plausible response.
But the gay panic defense is a conceptual tangle just beneath the surface. We can distinguish at least four different versions of what is better called the "homosexual advance defense."
The general idea is that when a gay man expresses sexual interest in a man who is not gay, the advance can be so offensive or threatening that the person lashes out at the gay man. The versions differ in their explanation for why the person lashes out rather than simply saying no, or why the person feels uncontrollable revulsion rather than a mere lack of interest.
In McKinney's case, the defense tried to argue that McKinney had been subject to sexual assault when he was 7 years old by being forced to fellate an older boy and that Shepard's alleged sexual approach brought back angry recollections of that incident.
The defense also claimed that at age 15 McKinney had a consensual homosexual contact that he found "confusing." But if McKinney's earlier forced homosexual experience was so offensive and traumatizing, why did he agree to a consensual gay experience eight years later? Why did he not become engaged and lash out at his partner then?
As for feeling "five minutes of rage" after Shepard's alleged advance, as McKinney's attorneys claimed, that seems unlikely. McKinney had the time and the self-control to drive his vehicle to a remote location and tie Shepard securely to a fence before continuing to beat him. That does not sound "out of control." It sounds like a plan of action.
Associated Press reporter Robert Black tried to explain the "gay panic" defense in a slightly different way as the theory that "a person with latent homosexual tendencies will have an uncontrollable, violent reaction when propositioned by a homosexual."
But the whole notion of "latent homosexuality" has pretty much been tossed on the slag heap as an invalid concept. As sex researcher C. A. Tripp pointed out in The Homosexual Matrix:
"The term (latent homosexual) is virtually undefinable unless one assumes that the individual has in some sense already eroticized at least a few attributes found in same-sex partners - and in that case, the person firmly meets either the homosexual or bisexual definition," whether they act on those desires or not.
Certainly in McKinney's case having "consensual" homosexual sex at 15 does not sound very latent by anyone's standard.
There is another version of the homosexual advance defense - but stripped of all its ponderous psychiatric baggage - which asserts that if a gay man expresses interest in another man, that means the gay man thinks the other man might also be gay.
This is alleged to be so upsetting and offensive to the straight man, such a threat to his self-image, honor and self-esteem that he may feel it is necessary to attack the gay man to avenge the insult and restore his honor.
It seems likely that some heterosexual men (and many closeted gay men) do in fact have this response, particularly in the South and in some rural areas where reputation is so vitally important and the so-called "culture of honor" prevails.
But, of course, McKinney could not appeal to this defense since he acknowledged a "consensual" homosexual experience and, more important, had allegedly already told Shepard that he and Henderson were also gay. So the alleged approach could have come as no surprise.
Still, other defendants do try to make this claim. All they need is one or two men on a jury to share their reaction. But however much it may reflect prevailing cultural mores, it is important not to honor this defense in the law.
Finally, there is a version of the homosexual advance defense in which defendants simply try to imply that any invitation to homosexual activity, any contact with homosexuals or homosexuality, is so offensive, so disgusting to any heterosexual man that he naturally feels offended and angry.
This defense too, is probably still hinted at in some areas of the United States, especially when no other defense seems available. But the notion is clearly false and will become more obviously false as the acceptance of gays continues to spread. Most heterosexual men, even now, are able to say, "No thanks, I'm not interested" and that can be all there is to it.
The reason for refusing to accept any of these defenses is the same: One important way to discourage men from beating up gays is to stop accepting the excuses they offer after they have done so.