What Is Gay Panic Defence And Where It’s Still Legal

This article was originally published on the Gay Community News (GCN) website on 3 MAY, 2019.

James Miller had developed a passion since leaving the Austin Police Department: Music. He had acquired a guitar and propositioned fellow musicians at a bar about setting up a jazz band. His 32-year-old neighbour, David Spencer, shared in his passion, and the two would play music late into the night.

On one of such nights, after a round of drinking, Spencer moved in for a kiss. He was stabbed in the back two times by Miller, and bled to death.

Miller was charged with murder, but three years later claimed he was sent into a blind “gay panic” by his neighbour. The defence was successful: Miller only served six months in jail, with a decade to be spent on probation.
This sentence was passed in April, 2018.

Although seemingly a defence from decades past, the gay panic defence is still employed with alarming regularity worldwide. It is a workable defence in all but three American states (it is not applicable in California, Illinois and Rhode Island), and South Australia (where it is set to be repealed by 2020). It was still legal in New Zealand up until 2009.

The “gay panic defence” stipulates that same-sex interactions are so repulsive to cisgender, heterosexual individuals that it sends them into a rage that culminates in murder. It reinforces our second-class status: That our inherent sexuality is grounds enough for our deaths. That non-straight sexuality and existence is of less value than straight lives. It propagates the dated and offensive idea that we are sexual predators who need to be expelled.

The defence first attained recognition in the 1960s, when homosexuality was still defined as a mental illness. Californian man Joseph Rodriguez beat another man to death with a tree branch. His defence attorney called the incident, “an acute homosexual panic brought on him by the fear that the victim was molesting him sexually”.

Other such incidents have attained greater critical examination: The 1998 murder of 21-year-old Matthew Shephard by two older men received worldwide condemnation. In Ireland, the murder of Declan Flynn in 1982 by a crowd of youths – who received minor suspended sentences – was the impetus for growth in our national LGBTQ+ movement.

A troubling offshoot of the gay panic defence is the “trans panic defence.” Last year 265 trans people were reported murdered in 29 countries, according to the Trans Murder Monitoring.

While stringent strides have been made in the development of LGBTQ+ rights both at home and abroad, it is impossible to feel fully-accepted by society at large while our siblings are slain in incidents that are justified by archaic laws. When legislation is on our side, only then can we begin the process of feeling safe.

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