Kara S. Suffredini*

Abstract:  Gays experience a disturbing paradox in American society today: while the gay rights movement enjoys increased visibility, gay-bashing is perhaps the most common and most rapidly increasing of hate-related crimes. The Homosexual Panic Defense (HPD) is based on the homosexual panic disorder, a scientific and medical explanation of, and justification for, the behavior of defendants who murder gay individuals. However, while used to justify some of the most frequent and heinous of hate crimes, the HPD has no uniform definition across cases and bears only a tenuous connection to the psychiatric disorder that legitimizes it. This Note explores the disassociation between the disorder and the defense, and argues that the HPD is not actually based on the psychiatric disorder, but rather on social and institutional prejudice against gays. This Note concludes that the HPD’s use must, therefore, either be limited by the application of new evidentiary rules, using the rape-shield rules as a guide, or better yet, eliminated altogether.

Don’t treat me like I am something that happened to you.

—Ani DiFranco1

On March 6, 1995, Scott Amedure appeared with Jonathan Schmitz on the Jenny Jones talk show.2 He revealed that he had a secret crush on Schmitz.3 Schmitz was not flattered; rather, he felt “embarrassed” and “humiliated.”4

Nor did Schmitz “take it lying down.”5 Three days after the taping, he visited a local bank, withdrew money from his savings account, [*PG280]and purchased a shotgun.6 He then drove to Amedure’s trailer.7 Standing at the door, Schmitz shot Amedure twice through the heart, killing him.8 He then left the trailer, dialed 911, and confessed to the shooting.9

Because Schmitz’s deadly reaction stemmed from an appearance on a national talk show, People v. Schmitz is perhaps the most infamous case in which a defendant has asserted the Homosexual Panic Defense (HPD).10 In defense of his actions, Schmitz argued that the humiliation of being objectified by Amedure’s homosexual affections drove him to kill.11 Basically, he blamed Amedure; more specifically, he blamed Amedure’s sexuality.12 In so doing, he asked the jury to sympathize with his reaction to this homosexual crush.13 They sympathized.14 The jury found Schmitz guilty of the lesser offense of second-degree murder, despite the fact that the prosecution tried him for first-degree murder.15

Although the Schmitz case is an infamous example of the HPD’s role in reducing culpability for anti-gay violence, the case is not unique.16 To the contrary, a troubling pattern has emerged from cases involving the HPD; from the inconsistent and inaccurate manner with which attorneys assert the defense, to the prejudices attorneys and judges explicitly rely on to decide whether to employ the defense, to [*PG281]the egregious violence that juries excuse when they are exposed to the defense, it is clear that when a judge allows a defendant to use the HPD, she allows that defendant to blame the victim, to solicit courtroom actors’ anti-gay biases, and to further institutionalize in the legal system our society’s prejudice against gays.17 Because “[t]here is reason to believe that gay-bashing is the most common and most rapidly increasing . . . [of] hate-related crimes in the United States,” the continued use of the HPD raises disturbing questions concerning the extent to which the legal system—and the society it reflects and supposedly protects—is willing to condone prejudice and excuse violence against gays.18

This Note argues that the HPD is based on, reinforces, and perpetuates prejudice and violence against gays.19 Therefore, its use must either be limited by the application of new evidentiary rules or, better yet, eliminated altogether. Part I discusses the social perceptions of sex, gender, and sexuality that set the stage and scenery for the formulation and assertion of the HPD. Parts II and III relate the evolution of the HPD from its anemic roots as a psychological disorder to its reported debut as a robust legal defense. This evolution demonstrates that the defense as asserted and applied is not based on the psychiatric literature, but on anti-gay stereotypes and prejudices. Part IV details examples of the HPD’s use, revealing its powerful seduction of courtroom actors’ prejudices and its concomitant potential for abuse. Part V makes recommendations for the future of the defense, using the theories that fueled rape reform rules as a guide. Finally, this Note concludes that as the status of gays in this society improves, it becomes increasingly evident that the costs of the HPD exceed its benefits.

[*PG282]I.  Weapons of Cultural Genocide: Sex, Sexuality, and Gender

Our bodies are the battleground where a war to regulate and control gender expression is increasingly being fought.

—Riki Anne Wilchins20

In her book, The Epistemology of the Closet, Eve Kosofsky Sedgwick states that the HPD “rests on the falsely individualizing and pathologizing assumption that hatred of homosexuals is so private and so atypical a phenomenon in this culture as to be classifiable as an accountability-reducing illness.”21 However, the widespread acceptance of this defense, she argues, in conjunction with the fact that comparable defenses have never been, and presumably never would be formally asserted in relation to other traditionally disadvantaged populations, suggests that hatred of gays is, to the contrary, actually more public and more typical than hatred of any other disadvantaged group.22 Thus, a basic understanding of the pervasive presence and particular manifestations of prejudice against gays in American society is necessary to appreciate the problems inherent in the formulation and use of the HPD.23

A.  The Interpersonal Battle

American culture and society is heterocentric.24 That is, a heterosexual perspective permeates American understandings of sex, gender, and sexuality, and confines the realm of appropriate social interactions accordingly.25 Thus, what it means to be male or female, a man or a woman, is the basic foundation upon which social relationships are built and from which flow acceptable, indeed legal, interactions.26

[*PG283] Heterocentricism envisions a rigid, binary system of sex, gender, and commensurate sexuality.27 Accordingly, sex generally refers to an individual’s status as either biologically male or female, while gender typically refers to an individual’s social role as either masculine or feminine.28 Males and females typically become men and women, respectively.29 Men have a masculine social role, and women have a feminine social role.30 It is fiercely debated whether these social roles construct, or are the result of, gender.31 However, viewed either way, as the embodiment of one’s social role as determined by one’s sex, gender is the social performance of one’s sex.32

An integral part of this performance is sexual behavior.33 Heterocentricism presumes a sexuality commensurate with the binary system of sex and gender; it presumes that all men and women are heterosexual.34 In this way, heterosexuality is compulsory.35 That is, part of one’s gender, part of the performance of one’s sex, part of what it means to be a man or a woman is an attraction to, and only to, and sexual behavior with, and only with, members of the other biological sex and gender.36

Compulsory heterosexuality is a form of social control; it confines, regulates, and reproduces the realm of cognizable sexes, genders, and sexuality.37 Thus, gay men,38 who do not conform to this heterosexual compulsion, but rather step outside the cognizable [*PG284]boundaries for sex and gender by being sexually attracted to, and by engaging in sexual behaviors with, members of their same sex and gender, are out of control.39 As such, they are stereotyped as sex-crazed predators who “may plausibly be accused of making sexual advances to strangers.”40

This cultural stereotype sets the stage for the assertion of the HPD.41 According to the heterocentric system, men are sexually aggressive, and women are passive and chaste.42 Thus, it is acceptable, indeed expected, that men will “hit on”43 women, and concomitantly, that women will be “hit on” by men.44 However, it is unacceptable for men to “hit on,” or to be “hit on” by, other men.45 Moreover, such behavior is both individually and systemically terrifying, because it relegates the objectified man into the passive, female role in the interaction, and in so doing, makes him the target of the gay man’s predatory urges.46 This interaction destabilizes both the social role of the objectified man, as well as the entire heterocentric system of sex and gender relations.47 Because this system demands that heterosexual men be aggressive in all sexual interactions—that they not “take it lying down”—American culture and society seems to suggest, if not demand, that it is both appropriate and necessary for a man, in responding to gay male attentions, to reestablish and reaffirm both his individual social role and the stability of the entire heterocentric sys[*PG285]tem.48 By pressuring men to engage in this degree of social role policing in their interpersonal interactions, society appears to create a universalizing assumption “that violence, often to the point of homicide, is a legitimate response to any [homo]sexual advance[,] whether welcome or not.”49

B.  The Institutional Battle

Although this propensity for violence against gays suggests that gays would be well served to seek protection from the law, such is not, in fact, entirely the case.50 Surprisingly, perhaps, the heterocentric prejudice and fear directed toward gays interpersonally is institutionalized in the legal system.51 For example, the United States Supreme Court reads the Federal Constitution to protect extended as well as nuclear families, but neither the Constitution, nor a single state, recognizes gay marriage.52 Although the possibility of gay marriage flowed from a recent landmark decision in Vermont—a case in which the state supreme court held that gays are entitled to the benefits and obligations of marriage under the Common Benefits Clause of the Vermont Constitution—the court declined to recognize that gays have a right to call their unions “marriages.”53 Furthermore, the fact that Congress created an act to relieve states from having to give full faith and credit to gay marriages performed in neighboring states before any states recognized these unions, and titled it the Defense of Marriage Act, demonstrates that fear as well as prejudice is institutionalized in the legal system.54

[*PG286] Sodomy laws are further evidence of the legal system’s prejudice against gays.55 The 1986 Supreme Court decision in Bowers v. Hardwick disparagingly declined to extend the Federal Constitutional right to privacy to “homosexual sodomy,” stating that a claim to such a right is “at best, facetious.”56 Despite the fact that the Court was ruling on an appeal from a conviction under Georgia’s sodomy statute—a statute that Georgia has since overturned—Bowers has yet to be overruled.57 Furthermore, despite this significant reversal in Georgia, thirteen states maintain statutes that criminalize sodomy.58 Five of these states exclusively prohibit same-sex sodomy.59

In addition to devaluing gay relationships, the legal system embodies a deadly ambivalence toward the increasing frequency and brutality of violence against gays. The juxtaposition of the Hate Crimes Statistics Act of 1990 (Statistics Act) with the proposed Hate Crime Prevention Act of 1999 (HCPA) is an example of alarming complacency toward, if not implicit support of, prejudice and violence against gays.60

Congress enacted the Statistics Act as part of an effort to identify the frequency of hate crimes against particular victims.61 The Act was the first piece of federal legislation recognizing gay individuals as frequent hate crime targets, and it authorized the collection of data relating to crimes against them.62 However, when Congress enacted the Statistics Act, no legislation existed that enabled enhanced punishments for anti-gay hate crimes.63 Although Congress later enacted legislation enhancing sentences for some hate crimes in 1994 (Sentencing Enhancement Act), the legislation only called for, but did not create, enhanced sentencing guidelines for hate crimes against gays.64

Today, eleven years after enacting the Statistics Act, Congress still has not enacted legislation to enhance sentencing guidelines for anti-gay hate crimes. Although legislation to this effect—namely, the [*PG287]HCPA—has been repeatedly introduced in Congress, it was not first introduced until eight years after the Statistics Act and four years after the Sentencing Enhancement Act each took effect.65 Moreover, thus far, it has failed several times, in its several forms, to pass.66 Considering that federal lawmakers implicitly acknowledged violence against gays in the Statistics Act, their unwillingness to enact legislation that would discourage such violence is alarming.67 When coupled with the violent interpersonal battles that gays face, the heterocentricism institutionalized in the legal system—most evident in the devaluation of gay relationships and perhaps, sanction of anti-gay violence—demonstrates an atmosphere primed for the successful formulation and assertion of the victim-blaming defense, the HPD.68

II.  Homosexual Panic—The Psychiatric Disorder

Cases in which homicide defendants are charged with the murder of a gay individual typically involve two complimentary defense theories that are usually asserted together.69 One theory is self-defense.70 Self-defense has been asserted successfully by homicide defendants who claim that they were the victims of an attempted homosexual rape.71

The other defense theory is the HPD.72 The HPD is based on a scientific and medical explanation of, and justification for, the behavior of defendants who murder gay individuals.73 The basic theory of this defense posits that a homosexual solicitation can cause a latently gay defendant to “panic,” to become temporarily unable to distinguish right from wrong, and to severely beat or kill the solicitor.74 Unlike self-defense, which has been a successful defense theory when the triggering action was an attempted rape, the HPD has proven successful even when the victim’s triggering action was as slight “as a non-[*PG288]violent verbal or gestural solicitation.”75 As such, the defendant claims that his culpability should be mitigated both by the fact that the victim triggered the violent reaction and by the fact that the reaction itself was uncontrollable.76

A.  The Homosexual Panic Disorder

The advent of “homosexual panic” as a legal defense is a relatively recent phenomenon when compared to its existence as a psychiatric disorder.77 Although research and documentation of the disorder is scant and sketchy, clinical psychiatrist Edward J. Kempf first coined the phrase “acute homosexual panic” in 1920.78 Based on only nineteen case histories of soldiers and sailors that he studied in a government mental institution during and after World War I, Kempf defined the disorder as “a panic due to the pressure of uncontrollable sexually perverse cravings.”79 He attributed the onset of the panic to the fact that his patients had been grouped together in same-sex environments for prolonged periods during the War.80

According to Kempf, the disorder has “dual determinators”: the patient’s terror of his attraction to homosexuality coupled with his fear of heterosexuality.81 He noted that these fears are most apparent and least controllable in same-sex environments.82 However, the fear in these situations is not due to homosexual propositions or advances, rather, it is the result of aroused homosexual cravings that pose serious challenges to the patient’s self control.83

Subsequent psychiatric dictionaries have lent support to Kempf’s findings.84 For example, Robert J. Campbell’s Psychiatric Dictionary describes the panic state as typically triggered by “separation from a member of the same sex” to whom the patient has become “emotionally attached.”85 Thus, according to the psychiatric literature, the conditions precipitating homosexual panic are “the overwhelming and [*PG289]exclusive presence of members of [an individual’s] own gender, or the absence of [such] a same-gender relationship to which [an individual has] become accustomed.”86

The onset of the panic itself includes periods of introspective brooding, self-punishment, suicidal assaults, withdrawal, and helplessness.87 Patients demonstrate “passivity” and an “inability to be aggressive.”88 More pointedly, according to Burton Glick, author of an article summarizing the results of his survey of the available case studies on homosexual panic, patients are “unable to function at all.89

Thus, according to this psychiatric literature, the homosexual panic disorder does not manifest as a single, passionate fit in which the patient is driven to brutally beat or kill another person.90 In fact, not one of Kempf’s cases included a report of violence by patients toward others because of a sexual advance.91 To the contrary, his patients lacked the ability to use such violence, resorting instead to self-punishments and suicide.92 Similarly, in his 1958 study on the fear of homosexuality in college students, Henry Harper Hart reported not only that none acted violently toward others, but also that all patients blamed themselves for their homosexual cravings.93 Thus, the homosexual panic disorder is not a temporary, violent episode, but rather an on-going illness that is augmented by bouts of severe depression and withdrawal.94 Notably, Hart concluded that accepting the homosexual cravings or engaging in homosexual behavior “often relieve[d] anxiety.”95

B.  The Acute Aggression Panic Disorder

In his survey of the literature on the homosexual panic disorder, Glick notes that one of the primary sources of confusion in making a homosexual panic diagnosis, and a consequent misdiagnosis, stems [*PG290]from the failure of the psychiatric literature to clearly identify which instinctual drive underlies the disorder.96 Generally, the two great instinctual drives are the sexual and the aggressive.97 Glick explains that in a healthy personality, these drives are “fused and balanced,” while in a psychotic personality, they are split or unbalanced.98 Patients who suffer from a predominate sexual drive, such as those who endure overwhelming homosexual cravings, can be diagnosed appropriately as suffering from homosexual panic.99 However, patients who suffer from a predominate aggressive drive, such as those who react violently to sexual advances, cannot.100 Glick asserts that cases involving aggression implicate a different instinctual drive than the drive that underlies homosexual panic disorder, and they therefore should be understood to implicate a different disorder than homosexual panic.101 He labels this disorder “acute aggression panic.”102

Glick’s observations make an important distinction on a point that the psychiatric literature muddles.103 For example, “recent literature describes how the psychological theory of homosexual panic has been used by psychiatrists . . . to explain [violent] criminal activity.”104 Typical of these cases is a situation in which a man initially allows himself to be solicited or seduced by another man, but then suddenly turns upon the solicitor and beats or even kills him.105 Psychiatrists assert that the overwhelming fury that characterizes the attacker’s reactions in these scenarios cannot be attributed only to feelings of disgust, but must additionally be attributed to latent homosexual cravings or a comparable collapse of a heterosexual self-image.106 They label this disproportionate anxiety “homosexual panic.”107

However, as Glick notes, these scenarios are better understood as implicating acute aggression panic because, although they involve the sexual drive, their primary symptom is a loss of control of the aggressive drive, and it is acute aggression panic disorder that describes this [*PG291]predominance of the aggressive drive.108 Moreover, regardless of the label given situations implicating aggression, these scenarios should not be confused with the homosexual panic disorder because the ability to aggress, particularly toward others, is noticeably absent in patients suffering from homosexual panic.109

Glick’s distinction finds support in some current psychiatric dictionaries that recognize the homosexual panic disorder.110 Campbell’s Psychiatric Dictionary adopts this apt distinction, but it is grammatically embedded within the definition of homosexual panic disorder, perhaps contributing to, rather than clarifying, the confusion.111 After listing the type of symptoms that Kempf recorded, such as depression and withdrawal, the Psychiatric Dictionary explains that “[s]ometimes, instead of overt sexual material, the anxiety is related to fears of . . . physical violence . . . [and] [s]uch an episode is termed acute aggression panic.112

However confused in the literature, Glick’s distinction between the homosexual panic and acute aggression disorders is critical for two reasons.113 First, while violence triggered by one’s disconcerting realization of a predisposition to homosexual desires may garner sympathy and reduce culpability in our heterocentric society, violence triggered by one’s predisposition to aggress, even if directed toward another in relation to their homosexuality, is unlikely to elicit comparable sympathy.114 Second, Glick’s distinction moots any discussion of violence and relative culpability with relation to the homosexual panic disorder. 115 As he explains, while the disorder implicates anxiety over one’s own homosexuality, it neither implicates anxiety over another’s homosexuality, nor does it result in violence toward others.116 Unfortunately, however, this discussion is only theoretically moot.117 Functionally, it is alive and kicking: the evolution of the homosexual panic disorder into a legal defense has tended, with telling ease, to mimic, and [*PG292]perhaps rely on, its conflation in the psychiatric literature with the symptoms of acute aggression panic disorder.118

III.  Homosexual Panic—The Legal Defense

The conflation of the homosexual panic and acute aggression disorders in the psychiatric literature fuels the use and abuse of the HPD in the legal system.119 Although it is used to justify some of the most frequent and heinous of hate crimes, the HPD has no uniform definition across cases and bears a tenuous connection to the psychiatric disorder that legitimizes it.120 These problems belie a troubling lack of emphasis in the legal system on detecting and only defending bona fide instances of homosexual panic disorder.121

A.  The Definitional Inconsistencies

The HPD is wrought with two specific definitional inconsistencies across cases.122 The first inconsistency concerns whether the defendant who raises the HPD must be a latent homosexual.123 The second inconsistency involves whether the HPD is a form of insanity defense.124

1.  Latent Homosexuality

The consistent occurrence of inconsistent assertions of the HPD raises questions as to whether homosexual panic, as a legal defense, requires that a defendant be a latent homosexual, as does the disorder on which the defense is based.125 The first reported judicial mention of the HPD in the 1967 case of People v. Rodriguez is typical of cases in which the defendant neglects to assert that he is a latent homosexual.126 In Rodriguez, the seventeen-year-old defendant testified that he was urinating in an alley when an “old man,” grabbed him from behind.127 The defendant picked up a four-foot-long stick, at[*PG293]tacked the old man, and eventually killed him.128 The defendant pleaded not guilty, asserting that his actions were the result of an acute homosexual panic brought on by a fear that the old man was “trying to engage in a homosexual act.”129 However, while asserting a fear of the victim’s homosexuality, the defendant failed to attribute this fear to his own latent cravings.130 Nonetheless, the jury found the defendant guilty of second-degree murder.131

Similar to Rodriguez, the defendant in State v. Thornton substituted his disgust for and aversion to other individuals’ homosexuality for an appropriate emphasis on his own latent homosexuality.132 The defendant stated that “[q]ueers and freaks upset [him] a lot” and that he tried “to stay away from them as much as possible.”133 Accordingly, when the victim put his hands around the defendant’s waist, the defendant lost his temper and stabbed him to death.134 In his confession the defendant stated, “I know that he was trying to queer me” and “[I] went out of my mind completely insane,” although he equally admitted that the victim “had not made any threats” to him.135 Thus, as in Rodriguez, the Thornton case made no direct reference to the defendant’s latent orientation in attempting to establish the HPD.136 Nonetheless, in deliberating between second-degree murder and the lesser offense of manslaughter, the jury convicted the defendant of the lesser offense.137

Similar to Rodriguez and Thornton, the defendant in Commonwealth v. Shelley neglected to assert that he was a latent homosexual.138 In Shelley, the defendant agreed to spend the night with the victim and to share his bed.139 When the victim began to make “sexual advances,” the defendant became “[u]pset[,] . . . jumped out of bed[,] and went downstairs to the kitchen for a drink.”140 He returned to the bedroom with a meat cleaver and a roasting fork, turned off the bathroom light [*PG294]to ensure that the victim could not see the weapons, and sat down on the bed.141 When the victim reached for him again, the defendant attacked, “repeatedly hitting him with a meat cleaver, stabbing him with the roasting fork, choking him, and finally jumping on his head.”142 At trial, although the defendant emphasized that the victim’s homosexual advances triggered his homosexual panic, he neglected to assert that these advances triggered a panic because he was a latent homosexual.143 Unlike Rodriguez and Thornton, the jury in Shelley rejected the defendant’s defense.144

Conversely, the defendant in People v. Parisie was careful to attempt to establish that he was “a highly latent homosexual.”145 On the night of the murder, the victim offered a ride to the defendant.146 The victim drove him past a lake, down a gravel road, and then parked.147 The victim turned off the headlights and solicited the defendant, smiling and saying that “if the defendant refused he would have to walk.”148 At trial, the defendant pled not guilty, testifying that when his latent cravings were aroused, he “blew up, went crazy,” and shot the victim.149 The jury found Parisie guilty of murder.150

Latent homosexuality is a fundamental component of the homosexual panic disorder.151 However, these cases exemplify that latent homosexuality is inconsistently included in defendant’s assertions of the HPD.152 While troubling in and of itself, perhaps the most disturbing aspect of this inconsistency is that the inclusion of, or failure to include, a defendant’s latent homosexuality in establishing the HPD seems to bear no clear correlation to the success or failure of a particular assertion of the HPD.153

[*PG295]2.  Legal Insanity

Similar to the inconsistent inclusion of a defendant’s latent homosexuality in asserting the HPD, the assertion of the HPD as a form of insanity defense suffers from two deficiencies that suggest this use of the defense is inappropriate.154 First, the psychiatric moorings of the HPD do not clearly indicate that the homosexual panic disorder can appropriately be understood as either a form of culpability-reducing mental illness or a type of legal insanity.155 Second, the variant success of such inconsistent assertions exacerbates the already tenuous connection that the HPD bears to the disorder.156

Mental illness is not synonymous with the “insanity” defense, and “[i]n order for mental illness to exonerate criminal behavior, the person must not be able to tell right from wrong or not understand the character of their actions.”157 However, individuals suffering from the homosexual panic disorder suffer because of the degree to which they are aware that homosexuality is “wrong.”158 Additionally, cases involving the HPD do not assert that defendants do not realize that stabbing their victims with meat cleavers, choking them, beating them with clubs, jumping on their heads, or shooting them would cause harm or death.159 Thus, the nature of the homosexual panic disorder does not lend itself easily to being understood as the type of mental illness that should exonerate violence and murder.160

Legal insanity requires a showing of “mental disease or defect.”161 Mere psychological disturbance does not rise to the level of legal insanity.162 Although it is unclear whether the homosexual panic disorder is a mere psychological disturbance or a “mental disease or defect,” defendants frequently assert the HPD as a form of insanity defense erratically and with erratic results.163

For example, in Parisie, while the defendant attempted to assert the HPD as an insanity defense, his expert witnesses testified that ho[*PG296]mosexual panic is “not a mental defect . . . but a psychiatric disturbance.”164 The jury appropriately rejected Parisie’s insanity defense and found him guilty of murder.165 In contrast, in Rodriguez the defendant tried to assert the HPD as an insanity defense without even attempting to demonstrate that the HPD meets the “mental disease or defect” requirement for establishing legal insanity.166 Like Parisie, the jury rejected Rodriguez’s insanity plea and found him guilty of second-degree murder.167 On the other hand, in Shelley the defendant explicitly attempted to establish that homosexual panic is a “mental defect or disease,” yet the jury still rejected this insanity defense.168 However, in stark contrast to these cases, the defendant in Thornton did not expressly assert that homosexual panic is a “mental disease or defect,” but the jury nonetheless reduced Thornton’s conviction from second-degree murder to manslaughter.169

In sum, at first blush, the definitional inconsistencies in the assertion and success of the HPD across cases merely raise questions as to whether the HPD requires that a defendant be a latent homosexual—a critical element of the disorder on which the defense is based—and whether and how the HPD can be construed as a form of legal insanity.170 However, something more fundamental than the details of the defense lurks in the shadow of these inconsistencies. More important than demanding that a defense that excuses such heinous crimes have a consistent formulation, is noting what the failure to demand such consistency suggests: that perhaps the legal system is not concerned about detecting bona fide instances of homosexual panic disorder, nor about demanding full accountability for unmitigated anti-gay violence.171

B.  The Disassociation of the Defense and the Disorder

If examples of the inconsistent assertion and success of the HPD across cases belie the legal system’s apathy toward detecting bona fide cases of homosexual panic disorder, then the disturbingly obvious dis[*PG297]association of the HPD, as asserted and applied, from the pivotal features of the underlying disorder on which it is based is cause for alarm.172 A general perusal of cases involving the HPD reveals that many of the characteristics that are indicative of homosexual panic disorder are either raised incorrectly or not raised at all in the assertion of the homosexual panic defense.173

1.  Dual Determinators

Defendants frequently assert the HPD without asserting both of the critical “dual determinators” of the psychiatric disorder.174 As described above, defendants frequently fail to assert their latent homosexuality.175 Indeed, this was the case from the moment of the legal defense’s reported inception in Rodriguez.176 Moreover, despite the primacy of this characteristic in the disorder, the defense has been successfully asserted without it, as was the case in Thornton.177 This evinces a fundamental split between the defense and the disorder both because, as Kempf originally defined it, one of the disorder’s “dual determinators” is the patient’s terror of his own attraction to homosexuality, and because disgust or aversion to another’s homosexuality has no role in the psychiatric disorder.178

In addition to failing to assert their own latent homosexuality, defendants typically raise the HPD without establishing their aversion to heterosexuality.179 In fact, most defendants are either heterosexually-identified or involved in heterosexual relationships.180 Moreover, they tend to establish an allegiance to heterosexuality by describing their aversion to homosexuality.181 For example, in Thornton, the defendant’s statements that “queers and freaks” upset him and that he tried “to stay away from them as much as possible” demonstrated both his aversion to homosexuality and his allegiance to heterosexuality.182

[*PG298]2.  Long-Term Nature

Not only is the HPD frequently disassociated from the pivotal “dual determinators” of the disorder, but it is additionally typically asserted in a manner that fails to recognize the disorder’s long-term nature.183 “Nowhere in the literature is the panic described as a violent episode that begins and ends within minutes or hours,” yet defendants persist in framing their crimes as temporary outbursts solely precipitated by the victim’s homosexual solicitation, instead of establishing the disorder’s requisite history of attachment to individuals of the same sex.184 Again, such was the case in the HPD’s debut in Rodriguez, in which, instead of offering evidence of an history of latent homosexual cravings or attachment to individuals of the same gender, the defendant testified that he thought the victim was trying to sexually molest him, and that this alleged assault triggered a “crazy” reaction.185 Similarly, in Parisie, the defendant asserted that he “blew up” and “went crazy” at the moment when the victim allegedly made a sexual advance, without articulating an history of same-sex attraction as a precipitator to the outburst.186

Furthermore, cases in which defendants do recognize the importance of establishing a long-term psychological illness in asserting the HPD are marred by a mischaracterization of the quality of the psychiatric problems involved in the homosexual panic disorder.187 For example, in Commonwealth v. Carr, the defendant proposed to show a lengthy history of constant rejection by women and a consequent social withdrawal to explain why he became so impassioned as to shoot, at close range with a rifle, two women whom he had watched make love.188 However, while recognizing the longevity of the disorder, the defendant’s evidence failed to include any same-gender involvement, let alone attachment.189

3.  Voluntary Activity

In addition to neglecting the long-term nature of the disorder, defendants occasionally assert the HPD in defense of violence follow[*PG299]ing voluntary homosexual activity, further contributing to the disassociation of the defense from the disorder.190 Since a primary method for a patient suffering from bona fide homosexual panic disorder to achieve psychological relief is to admit their homosexual tendencies and, even better, to engage in homosexual behavior, voluntarily engaging in homosexual behaviors would incite relief, not violence.191 However, in Shelley, for example, the defendant attempted to establish the HPD by testifying that when the victim made a sexual advance he became “upset” and stabbed him to death, even though he had agreed not only to spend the night with the victim, but also to spend the night in his bed with him.192

4.  Self-Defense

Not only do defendants inappropriately assert the HPD in defense of their violent responses to voluntary same-sex activity, but they also use it to buttress independent pleas of self-defense.193 Linking the HPD to self-defense is inappropriate, however, because individuals who suffer from bona fide homosexual panic disorder do not have the capacity to defend themselves.194 After all, it is self-punishment, not self-defense, that is indicative of the homosexual panic disorder.195 Despite the fact that this is a clear disassociation between the defense and the disorder, the defendant in Rodriguez testified that he clubbed the victim to death because he “thought [the victim] was trying to engage in a homosexual act.”196 Similarly, in Thornton, the defendant stated that he shot the victim because he thought that “[the victim] was trying to queer [him].”197

By linking the HPD with self-defense, defendants not only distort a cardinal symptom of the homosexual panic disorder, but they also implicitly reject the firmer basis they would have in a legal defense based on acute aggression panic disorder.198 In contrast to homosexual panic, violence is symptomatic of acute aggression panic disor[*PG300]der.199 In his article, Dismantling the Homosexual Panic Defense, Professor Gary Comstock offers two theories for why defendants choose to inappropriately assert the HPD over asserting the more appropriate acute aggression panic disorder to mitigate anti-gay violence.200 First, he states that the psychiatric literature on acute aggression panic is even more scant than the literature discussing the homosexual panic disorder.201 Second, and more pointedly, he suggests that defendants assume that juries will be more willing to sympathize with a defendant who kills a gay man out of rage than with one who claims that his actions are due to his inability to contain his aggression generally.202

5.  Third Parties

In addition to inappropriately linking the HPD to independent pleas of self-defense, defendants occasionally raise the HPD when they were not even the object of the homosexual solicitation.203 For example, in Vujosevic v. Rafferty, the defendant and a friend were harassing a male stranger when the defendant walked away to urinate.204 When the defendant returned, his friend was beating the stranger.205 His friend told him that the stranger had made a sexual advance, and the defendant then joined in the deadly beating.206 At trial, the defendant testified that “something snapped in his head” when he learned of the sexual advance, causing him to join in the beating.207

Extending the HPD to these cases severely disassociates the defense from the disorder, because it is the patient’s latent homosexuality, not another’s sexuality, that is relevant to the disorder.208 The use of the HPD in these cases implies that the mere occurrence of a homosexual advance, irregardless of its implications for the defendant’s sexuality, warrants the defendant’s violent response.209 This sends the [*PG301]dangerous message that homosexual conduct, in and of itself, justifies anti-gay violence.210

6.  Gender-Exclusivity

The HPD is additionally disassociated from the disorder by the fact that only male defendants typically assert it.211 This is curious given that Kempf recorded homosexual panic in both male and female patients.212 Professor Comstock half-heartedly suggests a simple explanation: a lack of anti-lesbian murder by women.213 While it is possible that there has yet to be an instance of comparable anti-lesbian murder, this seems implausible given that the homosexual panic disorder is a disorder to which both genders fall prey.214

More likely, female defendants do not assert the HPD for the same reasons that male defendants do assert it—because its usefulness lies in its ability to seduce heterocentric prejudices and sympathies.215 Considering the framework for permissible social relationships on which our heterocentric society is built, it is both conceivable and understandable for a man to react violently to a homosexual solicitation, because men are not supposed to be solicited.216 However, part and parcel of this scheme that expects that men will not be solicited, is the expectation that women, in contrast, will be solicited.217 Therefore, the HPD is more likely to be effective, and therefore more likely to be used, in rationalizing the violent responses of men than it is for women.218 Comstock rightly argues that “[t]he soundness of the defense’s premise”—that the disorder causes murderous behavior—”should be challenged according to its inability to reflect the behavior of the universe of those who suffer from [it].”219

[*PG302]7.  Defense to Violence and Murder

The most glaring evidence of the disassociation of the HPD from its psychiatric roots lies in its very assertion and application as a culpability–reducing defense to violence and murder.220 Regardless of which aspects of the disorder are ignored or contradicted in any given case involving the HPD, each and every case alleges some degree of homosexual sexual solicitation by the victim and a gratuitous degree of violence by the defendant in response.221 However, sexual propositions or advances by others are not causal elements within the clinical definition of the homosexual panic disorder.222 Furthermore, patients that are clinically diagnosed with the disorder are self-punishing, if they able to function at all.223 Thus, the homosexual panic disorder seems hardly suitable as a basis for a legal explanation or justification for anti-gay violence.224 The consistent application of the HPD to violent fact patterns evinces a fundamental split between the construction of the HPD and the clinical understanding of the homosexual panic disorder on which it is supposedly based.225

In sum, the relationship of the HPD to the psychiatric disorder is tenuous at best.226 The various points of departure between the legal defense and the clinical disorder, when coupled with the legal system’s failure to demand a consistent definition of the defense across cases, suggests that the HPD is barely rooted, if at all, in the bona fide homosexual panic disorder.227 This begs the question: if the defense is not rooted in the psychiatric literature, then what is it based in? Perhaps the answer lies, at least in part, in Eve Kosofsky Sedgwick’s postulation that the HPD rests on the incorrect but socially pervasive perception that violence against gays is so atypical as to be seen as an illness, yet so understandable as to be excusable.228

[*PG303]IV.  The (Ab)use of the Defense

The likelihood that the HPD is rooted more in social and institutional prejudice than in medicine and science suggests that its use carries an enormous potential for abuse.229 Furthermore, this potential easily leads to propensity for abuse, because just as the disassociated and inconsistent use of the HPD suggests that it is rooted in anti-gay bias, this very same bias suggests that the defense can, and will, be blatantly abused.230 Thus, the disassociation of the defense from the psychiatric disorder and its inconsistent application across cases is both an indication and a product of the HPD’s survival and capitalization on the conflation of interpersonal fear, disgust, and hatred of gays within a legal system that historically devalues them.231 Indeed, examples of the strategic, normalizing approaches of attorneys who rely on the defense, of the explicit biases of judges who allow the defense, and of the egregious violence that juries excuse when they are instructed to consider the defense, buttress the notion that the use of the HPD, while always inherently questionable, is sometimes blatantly abusive.232

A.  Abuse by Attorneys

Noting the HPD’s illegitimate basis in the homosexual panic disorder, Professor Comstock argues that the HPD is a “strategy of legal defense that [relies] almost exclusively on the anti-gay/lesbian biases of judges and jurors . . . .”233 This implies that defense attorneys assert the HPD because they hope that the defense will seduce other courtroom actors’ prejudices and sympathies away from the brutalized victim and toward the defendant.234 It also implies that defense attorneys may do so even when they, themselves, do not believe that the defendant, in fact, suffers from a bona fide case of homosexual panic disorder.235 While every defendant has a Constitutional right to an adequate defense, such questionable use—and perhaps, abuse—of the HPD not only calls into question the integrity of the defense, but also [*PG304]accrues the great moral cost of further extending an already slippery slope of legally-sanctioned violence against gays.236

The statements of a defense attorney in an interview during a homicide case in Minnesota verify that such strategic abuse of the HPD does, indeed, occur.237 He is quoted as saying that “[he] would have loved former Marines, former servicemen [on the jury], because there’s a strong element of antagonism toward homosexuals in groups like that.”238 He also noted that his use of the HPD worked as he had planned, stating that the jury was “thrown off balance” when he claimed the defendant’s assault was a reaction to homosexual advances.239

Furthermore, attorneys’ reliance on the HPD, and its commensurate bias, inside of the courtroom, threatens to extend the alarming abuse of the HPD to scenarios outside of the legal system and beyond situations involving assault or murder.240 For example, in 1982, Ohio’s Attorney General responded to the State Youth Services Director’s inquiry about the employment of gays by concluding that homosexual panic may justify consideration of a job applicant’s sexual orientation.241 Relying on illegitimate legal interpretations of the psychiatric disorder, he stated that “knowledge that an employee has other than heterosexual orientation may result in what psychologists term homosexual panic—a combination of fear and hostility. . . . In 15–20% of youths [this] fear of sexual molestation may manifest itself in a ‘will kill if approached’ attitude.”242 Thus, he granted permission to condition the acceptance of gay job applicants on a finding that their homosexuality will not cause panic.243 This normalizing application of the HPD suggests that it may be available as both an impetus for and a justification of broad-based anti-gay bias whenever an individual is even aware that another individual is gay.244

[*PG305]B.  Abuse by Judges

Judges, like attorneys, also abuse the HPD.245 Despite the HPD’s tenuous connection to its psychiatric roots and its inconsistent application as, and unclear compatibility with, legal insanity, “[n]o court has barred the defense . . . [using the reasoning that] it rests on an untenable psychological theory, or [that] it is an unwarranted extension of the insanity defense.”246 Rather, the consistent allowance of an inconsistent defense suggests that anti-gay bias works in tandem with judicial discretion in fostering judicial decisions that allow the use, and abuse, of the defense.247

Examples of cases involving the HPD in which judges have explicitly expressed their own anti-gay biases abound.248 In one instance, at a pre-trial hearing to review the facts of an anti-gay murder, Circuit Judge Daniel Futch jokingly asked the prosecutor, “That’s a crime now, to beat up a homosexual?”249 When the prosecutor responded, “Yes, sir. And it’s a crime to kill them,” the judged replied, “Times really have changed.”250 Although Judge Futch was ultimately removed from the case, this was not the result in a case in San Francisco.251 In that case, California Superior Court Judge Daniel Weinstein presided over an entire trial involving the HPD, without a jury, and ultimately pronounced the defendant guilty of manslaughter.252 However, he tainted his ruling with anti-gay bias, stating that the victim “had ‘contributed in large part to his own death’ by his ‘reprehensible conduct’” because the victim allegedly solicited his killer hours before he was murdered.253 Similarly, in another case, Judge Jack Hampton imposed only a thirty-year sentence on the defendant, instead of the maximum sentence of life imprisonment, for the murders of two gay men.254 He stated that he did not “much care for [*PG306]queers cruising the streets,” that “[t]hese two guys . . . wouldn’t have been killed if they hadn’t been cruising the street picking up teen-age boys,” and that he “put prostitutes and gays at about the same level . . . [and would] be hard put to give somebody life for killing a prostitute.”255

Although judicial bias does not definitively flow from judicial discretion, the disparity in outcomes between cases in which judges articulate explicit biases against gays and cases in which they do not is noteworthy. For example, in a case in Washington, D.C., Judge H. Carl Moultries requested an advisory letter from the San Francisco District Attorney’s office before allowing the defendant to assert the HPD.256 After receiving the opinion, the judge requested that the defendant be given extensive psychological testing.257 Although the defendant had requested confinement for psychiatric treatment, Judge Moultries instead sent the defendant to jail for six to twenty years following the testing.258 Thus, because judges are not immune to the cultural devaluation of gays, nor to attorneys’ efforts to elicit these prejudices, broad judicial discretion in cases involving the HPD exacerbates the inconsistent and inappropriate use, and abuse, of the defense.259

C.  Abuse by Juries

Like attorneys and judges, juries are susceptible to the abuse of the HPD.260 The U.S. Constitution makes an attempt to counteract juror prejudices by requiring that jurors represent a cross-section of the community.261 However, this requirement cannot completely nullify the psychological imprint of anti-gay bias that pervades American culture and the very communities from which jurors come to join the jury box.262 Homosexuality is a topic that implicates deep-seated personal values, biases, and prejudices.263 Jurors are particularly susceptible to these biases when attorneys and judges elicit and reinforce anti-[*PG307]gay stereotypes through their use of the HPD.264 When the HPD seduces jurors’ biases, jurors are more likely to excuse or exculpate anti-gay violence.265

One anti-gay stereotype that the HPD reinforces for jurors is the notion that gay men are sexual predators.266 Jurors under the spell of this stereotype have reduced defendants’ culpability not only when the defendant has failed to produce any evidence of a homosexual solicitation, but also when strong evidence suggests that the defendant preyed on the gay victim.267

In Mills v. Shepard, for example, the defendant raised the HPD, alleging that his actions were in response to an uninvited homosexual solicitation.268 He admitted that he voluntarily accompanied the victim to an isolated spot after meeting him in a gay bar.269 He also admitted that he “pushed [the victim] out of his car, chased him . . . , knocked him down, kicked him, pulled his pants down to hinder pursuit, took [his] jewelry . . . , left him lying near the [creek in which the body was later found], and drove home” in the victim’s car.270 He further admitted bragging to his roommates that he had “rolled a queer.”271 However, despite this strong evidence that the defendant preyed on the victim, the jury reduced his culpability on account of the homosexual solicitation, finding the defendant guilty of voluntary manslaughter rather than murder or felony-murder.272

Another anti-gay perception that the HPD triggers in jurors is that a homosexual advance, even if merely verbal, is equivalent to a sexual attack.273 Arguably, a mere advance does not necessitate a violent or murderous response, even if made by an individual with a different sexual orientation than the individual solicited.274 Lois Reckitt of the National Organization of Women quips, “I am a lesbian and I have been approached by men in straight bars. In discouraging their advances, I have never found it necessary to try to kill them. I [say] [*PG308]‘no.’”275 However, the notion “[t]hat a sexual advance made by a gay man does itself pose a danger meriting retaliation appears to be a bias shared by some judges and jurors.”276 The implications of using the HPD to seduce this manifestation of anti-gay bias are twofold. First, if a mere verbal solicitation is equivalent to an attack, then this implies that it is not the victim’s advance per se that poses the threat; rather, the threat is the victim’s assertion of their homosexual orientation, or their homosexual identity, in and of itself.277 Second, it implies that a disproportionate, violent response to a homosexual solicitation is more acceptable than the solicitation itself.278

The most fundamental form of anti-gay bias that the HPD elicits for jurors is the notion that the gay victim is to blame for his own demise.279 This notion is integral to the HPD; the defense, notably unlike the disorder, rests on the basic premise that the victim’s homosexuality triggered the defendant’s panic.280 Thus, in the high-profile People v. Schmitz case, Schmitz blamed Amedure’s homosexual “ambush” for his violent actions.281 Although strong evidence suggested that Schmitz’s actions were premeditated—he withdrew money, purchased a gun, took it to Amedure’s home, and shot him—the jury returned a verdict finding him guilty not of first-degree murder, as he was charged, but of the lesser offense of second-degree murder.282

Moreover, in cases in which the victim’s homosexuality is in dispute, this victim-blaming aspect of the HPD is more subtle, yet also more sinister, because it places the victim, rather than the defendant, on trial.283 For example, in State v. Rivera, the defendant claimed that the victim made a sexual advance, and a defense-generated “minitrial” developed as to whether or not the victim was even a homosexual.284 The victim’s wife and friends testified that the victim was heterosexual, and thus unlikely to make a sexual advance.285 This dispute inappropriately shifted the trial away from the defendant, since the char[*PG309]acteristics of the defendant establish the presence of the homosexual panic disorder, particularly the primary requirements that the defendant have long-term, latent homosexual cravings.286

Given the HPD’s power to seduce the deep-seated, anti-gay personal values and prejudices of all courtroom actors, it is a strategy of legal defense that harbors enormous potential for abuse.287 Inconsistent precedent and a critical disassociation from the disorder on which the HPD is based further exacerbate this problem.288 Thus, either new evidentiary rules must limit the damage of this defense, or the defense must be eliminated altogether.

V.  Restricting the HPD’s Use

If American culture and society seems to suggest that violence against gays is a warranted, if not necessary, response to a homosexual solicitation, then the question that follows is whether, and to what degree, society is willing to excuse this violence against gays when it occurs.289 Attorneys’ express attempts to manipulate the HPD to capitalize on and normalize anti-gay prejudice buttress the HPD’s powerful appeal to judges’ and jurors’ biases.290 The resulting inconsistent, inappropriate, and yet successful assertions of the HPD, especially in egregious cases of violence against gays, demonstrate that our legal system is not only capable, but willing to excuse violence against gays.291 “Thus gays risk becoming fair game for assaults,” and such crimes against them serve as their perpetrators’ own defenses.292 However, “[anti-gay] bias is less operative and requirements for proof more stringent in the higher courts.”293 This inverse correlation suggests that systemic reform to curb the abuses of the HPD is possible.

Several options exist to alleviate the problems inherent in the use of the HPD. The most obvious option is to eliminate the defense altogether.294 Several reasons urge this solution. First, the HPD is based [*PG310]on scant and sketchy psychiatric literature.295 Second, to the extent that such literature exists, typical formulations of the HPD do not comport with, and indeed, frequently establish symptoms that are the inverse of the symptoms defined under the disorder.296 Third, perhaps because the HPD bears little relation to the disorder on which it is predicated, the HPD is inconsistently asserted and applied across cases.297 Fourth, because the HPD bears but a tenuous connection to the psychiatric disorder and is inconsistently asserted, it also embodies a tremendous propensity for seducing courtroom actors’ biases.298 Finally, our legal system does not accept “race panic,” “gender panic,” or “heterosexual panic” as culpability-reducing defenses to violence against people of color, women, and heterosexuals.299 “In fact, our legal system frequently deals more seriously with acts of violence directed against minority groups than with acts of violence generally.”300 Thus, the HPD—homophobia under the guise of an uncommon disorder turned common defense—should neither be an accepted nor an acceptable defense to violence against gays.301

If the legal system accepts the HPD as a defense to anti-gay violence, then it should demand that the defense conform to the psychiatric disorder from which it supposedly gains its legitimacy.302 In particular, the fact that psychologists and psychiatrists disagree as to whether the disorder is a mere psychological disturbance or a “mental defect or disease” rising to the level of legal insanity leads to inconsistent applications of the HPD and counsels against permitting the assertion of the HPD as a form of insanity defense until the psychiatric underpinnings of the disorder are more clearly defined.303 Furthermore, although the psychiatric literature underlying the HPD is scant and sketchy, the defense should, in the very least, consistently include the elements that are clearly defined as primary to the disorder, such [*PG311]as the disorder’s “dual determinators” and its long-term, rather than momentary, nature.304

The benefits of conforming the HPD to the disorder are several. First, requiring that the defense have a firm basis in the elements of the disorder promotes legitimacy and consistency in the defense’s application, while discouraging the inconsistencies that result from and enable the unconstrained biases of attorneys, judges, and juries.305 Second, asserting the defense in accordance with the elements of the disorder alleviates the victim-blaming tendency of the HPD by shifting the focus of the trial from the victim’s sexuality to the characteristics of the defendant.306 Finally, conforming the HPD to the psychiatric disorder would likely result in the appropriate dismissal of all but the bona fide cases involving the disorder, since violence in response to a homosexual solicitation is highly inconsistent with the disorder.307

In addition to conforming the HPD to the homosexual panic disorder, another method by which to alleviate the propensity for bias in the application of the HPD is to limit the amount of judicial discretion involved in allowing the defense.308 Rape-law reform in the form of rape-shield statutes is a useful guide, because rape cases are similar to cases involving anti-gay violence in that both implicate deep-seated personal values, seduction of cultural stereotypes, and victim-blaming.309

As in scenarios involving violence against gays, our “male-dominated legal system [originally] viewed rape as ‘different’ from other crimes because of a set of historical attitudes about women and sexuality[,]” including “a double standard for male and female sexuality” and a cultural distinction between “good,” chaste women and “bad,” promiscuous women.310 These cultural stereotypes fueled the notion that unchaste women were less likely to be victims of unconsentual sex, because they were more likely to consent to sexual en[*PG312]counters.311 Therefore, rape trials often focused on the chastity of the victim, her moral worth, and her concomitant likelihood to consent to a sexual encounter.312 Accordingly, defense attorneys engaged in an exposition of the victim’s past sexual conduct, character assassinations, and insinuations that the victim’s appearance or conduct provoked the rape.313 Empirical evidence supported suspicions that “jurors misused evidence of unchaste” and “‘victim-precipitating’” conduct to support their subscription to cultural attitudes about women and rape, and to reduce the culpability of, or simply to acquit, male defendants.314 In response to this social and legal bias and a changing moral climate, the rape-reform movement generated rape-shield legislation to “allow for the introduction of constitutionally compelled sexual conduct evidence while at the same time protecting the complainant and the fact-finding process against its irrelevant and prejudicial uses.”315 The ultimate goal was to strike a compromise between inflexible legislative rules and broad judicial discretion, without compromising the rights of either the defendant or the victim.316

Although rape-reform remains a work in progress, it is a useful model for efforts to cure the ills of the courtroom biases that are attendant to the use of the HPD.317 Like cases involving rape, cases involving violence against gays involve victims whose sexuality is culturally and legally devalued.318 While women who dress provocatively are seen as unchaste, men who engage in homosexual behavior are stereotyped as sexual predators.319 In either scenario, defense attorneys’ efforts to trigger these cultural stereotypes in the jury box are likely to take the form of victim-blaming and elicitation of sympathy for the defendant.320 Furthermore, efforts to prove that a victim is homosexual, and impliedly likely to make a homosexual advance, involve the introduction of irrelevant and prejudicial evidence, such as prior homosexual activities and sexual paraphernalia, in the same way that efforts to suggest a rape victim’s consent in the case at bar by [*PG313]demonstrating her sexual promiscuity in general frequently tainted rape cases before the advent of rape-shield statues.321 Moreover, in both types of cases, judges, who are not immune to cultural biases, wield great discretion in deciding both what evidence to exclude and the scope of permissible questioning.322 Thus, legislation that imposes appropriate restraints on judicial discretion and refines the inconsistent assertion and application of the HPD in cases involving violence against gays is a viable method for balancing the rights of the defendant and the victim while reducing the pervasive influence of American social, cultural, and institutional anti-gay biases.323


Assuming, for the moment, that socially impermissible behavior, such as engaging in homosexuality, is synonymous with immoral behavior, “it is morally questionable to suggest that there is less societal harm in the [v]ictim’s death merely because he acted immorally.”324 Yet, this suggestion is exactly what the homosexual panic defense implies. The stakes are simple and profound; they are life and death. In the Schmitz case, the jury sentenced Johnathon Schmitz to a kind of death within life—he went to prison. Scott Amedure died. Both fell victim to the heterosexism and commensurate homophobia that permeates American society.

In Burdens on Gay Litigants and Bias in the Court System, Robert G. Bagnall, Patrick C. Gallagher, and Joni L. Goldstein surmise that “[t]he fact that the [HPD] has not been rejected out of hand by the courts and legislatures may suggest that it appeals to the [anti-gay] bias of many individuals . . . .”325 Indeed, anti-gay bias is pervasive; it extends from the social interactions in which violence against gays occurs to the legal institutions in which gays seek protection and redress.326 Ironically, this anti-gay bias is not only the cause of, but it is the excuse for anti-gay violence.327 The legal system has mangled the homosexual panic disorder in order to create the HPD, such that the [*PG314]HPD bears only a tenuous connection to the scant psychiatric literature on which it is based.328 It is hardly surprising or unpredictable that the HPD is the legal embodiment of the same social prejudice that it was created to justify.329 The HPD’s disassociation from the homosexual panic disorder, its inconsistent assertion and application across cases, and its solicitation of the express prejudices of defense attorneys, judges, and jurors alike, suggest that its use is misuse.330

However, “[j]ust because a society is heterocentric does not mean it has to tolerate or encourage violent homophobic acts.”331 Indeed, although the cultural devaluation of gays that is institutionalized in the legal system appears unyielding, recent years have witnessed a trend coupling the decriminalization of homosexual behavior with the first successful case demanding equal access for same-sex couples to the rights, obligations, and benefits of marriage.332 Because these positive changes are occurring at the same time that violence against gays is also on the rise, American society may be primed to scrutinize, limit, and better yet, eliminate the use of the HPD as a plausible defense to these gratuitous crimes.333

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