Don't Panic, or, the Three Burials of Jenny Jones


I'm not sure whether "crime of passion" defenses in general have any place in this here modern world, where wronged wives and husbands have access to many remedies short of violence. But has there ever been any logic at all to the "gay panic" defense? If your reaction to a sexual situation is to murder the other person, doesn't that support, rather than undermine, the idea that you need to be removed from society permanently?

Unlike the apocryphal "Twinkie Defense," gay panic has actually been used in some murder cases, and has arguably allowed the murderers of Jenny Jones Show victim Scott Amedure and transgendered teenager Gwen Araujo to get off with somewhat lighter sentences than they deserved. Along with the Twinkie Defense, it's a useful rallying cry to get gays and lesbians ranting like Dirty Harry against a justice system more concerned about the rights of violent punks than the rights of law-abiding citizens. California and New York are both considering state bills designed to limit use of the gay panic defense. I don't know much about the New York bill, but this Bay Area Reporter story gives the lowdown on AB1160, a.k.a. the Gwen Araujo Justice for Victims Act.

Beyond a general distaste for legislative buttinski-ism, I've got no beef with a law to eliminate this rarely successful defense, but I'm not sure how the Araujo bill would achieve that goal. The proposal would "declare" that it's against California policy to allow bias to enter into a jury's decision; issue new jury instructions ordering jurors to be free of bias; and have the attorney general write up a pamphlet for prosecutors on how to deal with the panic strategy.

The best part of that Bay Area Reporter story, by the way, is its long digression about the Maoist self-criticism one politician had to perform after a gaffe. State Senator Carole Migden (D-SF)—whom I've always enjoyed because every election season she puts up giant billboards of herself that look like "for your consideration" ads for a Daytime Emmy Award nominee—gave a speech supporting the bill, but then grievously misused an LGBT term of art:

Migden said she has attended different houses of worship as part of the community's effort to build bridges. "I am sometimes just shocked by what is said at the pulpit," she said.

Then, Migden misspoke, referring to the murder of Guerrero's "son." Guerrero immediately corrected Migden, who immediately apologized.

"I'm terribly sorry. I didn't mean your son," Migden told Guerrero. "I was just looking at different images in my mind."

"We're going to be with you," Migden added.

Migden apologized again for misspeaking at the conclusion of the hearing a few minutes later.

Asked about the incident, Lieber attributed it to a long day of hearings on numerous bills. "I thought it was great Sylvia jumped in and made the clarification," she said. "I think it was the case of a very long meeting."

You know, if some politician accidentally called me a woman, I still wouldn't think it was worth five paragraphs of correction. But maybe I'm just a big pussy.

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  1. The Snopes article doesn’t actually show that the ‘Twinkie defense’ is ‘apocryphal’. It says ‘Dr. Blinder did suggest excessive sugar could have aggravated a chemical imbalance in White’s brain, but that comment was offered only as a parenthetical remark during Blinder’s testimony about White’s depression. It was not in any way a substantive part of White’s defense.’

    That the remark was ‘parenthetical’ and not ‘substantive’ are matters of interpretation. The fact is the expert witness suggested the defendant’s sugar intake contributed to the condition that allegedly impaired his capacity. That’s all that was claimed in the most precise and careful of the writers who used the term ‘Twinkie defense’.

  2. “Gay panic” may be a neologism, but it isn’t a new idea. Google up “Guardsman’s Defence” or “Portsmouth Defence,” terms from the UK. It was used by soldiers or sailors who, after being arrested for beating the crap out of some poor bloke, claimed that the victim had actually made a pass at them. In some cases, the advance was interpreted as attempted male-on-male rape. Even in these enlightened times, we could see the latter as self-defense. In the former, it was probably easier in times past to get a judge or jury to buy that “the invert had it coming.”

    I ran across the British variant in a John Mortimer story, Rumpole’s Return.


  3. The proposal would “declare” that it’s against California policy to allow bias to enter into a jury’s decision; issue new jury instructions ordering jurors to be free of bias; and have the attorney general write up a pamphlet for prosecutors on how to deal with the panic strategy.

    Assuming a law would solve any such problems, wouldn’t it make more sense for the law to put the onus on the defendant rather than the jury? Not “the jury can’t be bigots” but “the defendant can’t use ‘I was afraid I’d catch Teh Ghey’ as a defense.”

  4. I don’t know Jennifer, I don’t even know why nobody’s made a movie of the Newport Navy Scandal. Even a mediocre movie about the Newport Navy Scandal would be the stand-up-and-cheer movie of the year.

  5. I don’t know Jennifer, I don’t even know why nobody’s made a movie of the Newport Navy Scandal.

    Good God. I’d never heard of that before reading your link. I’m thinking maybe the lack of movies is because only a campy gay porn movie could do justice to the concept, unless you completely ignore the secret gay agent guys. “I have these sexual fantasies that I can’t quite bring myself to even admit having . . . what’s that? The country needs my help and the only way I can save it is by doing these sexual things? Oh, no! No no no! I hate the very thought of doing such horrible things but. . . well, I do love my country, you know. Por la patria.”

  6. The greatest possible takin’-it-in-the-seat-for-justice movie has already been made: Cruising, starring Al Pacino, a creepy camp classic. He plays a straight homicide detective who goes “undercover” as a dude who gets ass-boned a lot. It’s basically Dirty Harry with the .45 in the cop’s hand replaced by a series of random mustached men’s penises. Awesome.

    And it was made in the ’70s, so there are no speeches like Jennifer’s above, but that was the (un)subtext. Anything similar made now would be an Oscar-begging mess of pudding-faced post-orgasmic tears of guilty joy and Dawson’s Creek duelling soliloquies (and a Springsteen song). Gak. Thank God almost no one knows the Newport story.

  7. I’ve always thought that the Dan White case was a close relative of the ‘gay panic’ thing, in that the jury decided that it would have been really gross to have to work with a gay man, so heck, why not shoot him?

    I do agree that the bills are pretty much worthless, and even a bill prohibiting evidence that the defendant thought the victim was making is 1. unlikely to make any difference, and 2. has serious backfire potential. These cases, and the bill, demonstrate the need to educate the public that being gay isn’t that big of a deal, and that being on the receiving end of a pass isn’t the worst thing in the world. I’m not at all convinced any effort here will be successful, but it’s about the only real approach available.

  8. The Bay Area Reporter link was interesting. Assemblywoman Sally Lieber (D-Mountain View) authors a bill and gets it through the Senate Public Safety Committee. The legislation is named for Gwen Araujo, a murder victom. Sylvia Guerrero, Araujo’s mother, testified in support of the bill. In a “major” booboo Committee Chairwoman Senator Carole Migden (D-San Francisco) calls Araujo a “son.”

    So whose photo accompanies the story? Migden’s. Right.

  9. Cheers for Kevrob, for making the Rumpole connection.

  10. I think a law barring a defendant from offering a certain defense is a bad idea. Let a defendant offer whatever explanation for their actions they choose to give. It’s up to a jury to buy it, and before that for a judge to allow it to be presented. I see no problem. Yeah, the “gay panic” defense is silly. But so is “hate crimes” legislation.

  11. Reflecting on the “gay panic” defense in the light of the Matthew Shephard case provides some interesting insights. It seems as though the accused killers, or perhaps the girlfriend of one of them, floated some version of the story, early on in the investigation of Shepard’s murder. Then it became clear that “he was killed just because he was gay” inflamed public opinion against the assailants. Instead of serving as mitigation, suggesting gay panic was proof of the heinous nature of the cirme. Shephard’s imprisoned killers are now seeking to “set the record straight” and claim that Shephard sexuality had nothing at all to do with the case.

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