Gay Panic Law on trial
July 22nd, 2011
The witnesses have spoken and the evidence has been heard in the murder trial of Brandon McInerney. And there is no dispute over most of the facts.
Everyone agrees that McInerney shot Lawrence King during computer class three years ago. And it is well established that they had long feuded, starting when McInerney and his friends tormented King and continuing through Kings eventual taunting of McInerney by flirting with him. And both were aware that their behavior was unwelcomed by the other.
And it has also been shown that Lawrence King had recently announced that he was gay and had began experimenting with gender roles and expression. Lawrence had on some occasions worn makeup and boots designed and marketed to women. And the prosecution and the defense both agree – though in different ways and with different purpose – that when Brandon McInernery killed Lawrence King it was due to a large degree because King was gay.
The only dispute in this case is over what that means.
The prosecution argued that McInerney was a white supremest who shot King because he hated gay people. Her argument rests on evidence such as hundreds of white supremacy and Nazi images scrawled in McInerney’s books, on his shoes and his backpacks, 154 pages of Hitler speeches and books on the Nazi youth, his involvement in a street gang, and his mentoring by a local white supremest with whom he stayed the night before the murder. And because his motivation for actually killing King was based in hatred for homosexuals, she argues that hate crime provisions justify an increased sentence.
The defense attorney has a different take on the matter. His effort has been dedicated to painting King as a dirty nasty fag who couldn’t keep off of a strong young straight man and who provoked McInerney until he reacted in the heat of the moment. I mean, who wouldn’t be disgusted and horrified to have some mincing make-up wearing little queen flirt with you and embarrass you and, well, okay maybe it was a rash decision to shoot him, but who wouldn’t do the same?
This is called the Gay Panic defense. And while it is immoral, vile, and harmful to society, defense attorneys continue to use it whenever they can. For one reason. (LATimes)
Gay panic defenses are used because they often work, said Cynthia Lee, a law professor who wrote a 2008 UC Berkeley Law School Review article on the topic. In February 2006, a Kentucky man successfully won a lighter sentence after using a gay panic argument, according to a report by Equality California.
In the same year, a Fresno man who stabbed a transgender person 20 times agreed and was permitted to plead guilty to a reduced crime that brought a four-year sentence. The Fresno district attorney reportedly cited the difficulty of overcoming a panic strategy as a reason for offering the plea deal.
“There is no question that when murder defendants argue gay panic, they seek to tap into deep-seated biases against and stereotypes about gay men as deviant sexual predators who pose a threat to innocent young heterosexual males,” Lee wrote in the law review article.
But there is one change to the equation. In September 2006, the California State Legislature passed, and Governor Schwarzenegger signed, the Gwen Araujo Justice for Victims Act. This legislation does not ban or in any other way infringe on the defense’s right to say whatever he liked. But it does allow a prosecutor to have the judge read a statement reminding the jury that everyone deserves the same promise of justice and that they should resist the temptation to base their decision on prejudice:
Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes bias against the victim or victims based upon his or her disability, gender, nationality, race or ethnicity, religion, gender identity, or sexual orientation.
The prosecutor is invoking her Gay Panic clause and this will be the first case in which a judge cautions a jury not to use anti-gay bias.
And so it is not really McInerney that is on trial here. His guilt was evident from the beginning. Rather, this trial is about gay panic and whether a blatant appeal to anti-gay bigotry will influence a jury, even after they have been instructed by the judge not to not let it do so.