Mere weeks ago in Austin, Texas, a 69-year-old former policeman named James Miller was sentenced to 10 years probation and six months in jail for stabbing his 32-year-old neighbor Daniel Spencer to death two years ago. He killed Spencer after Spencer allegedly tried to kiss him. Though Miller claimed to fear for his life before murdering Spencer, killing a gay person over sexual advances is known as a “gay panic defense,” and it’s been banned in California and Illinois.
Currently there is a legal movement to ban gay panic defenses nationwide.
What happened on the night of Spencer’s murder?
Two years ago, Miller and Spencer, a film editor who moved to Austin from Los Angeles in 2014, were playing guitar at Spencer’s home. According to Miller, Spencer tried to kiss him and then became angry when Miller said he wasn’t gay.
In court, Miller’s lawyer argued that his 5’4″ client was afraid for his life as his 6′ neighbor “brandished a drinking glass” at him, although Spencer reportedly made no physical threats. In response, Miller stabbed Spencer twice in the back, killing him. The prosecution said Miller didn’t have “so much as a scratch on him.”
A jury accepted Miller’s version of events and found him guilty of “criminally negligent homicide,” a lesser charge than “manslaughter” that’s usually applied to those who contribute to a person’s death by refusing to render aid or take necessary precautions.
Miller claimed self-defense, but by saying that Spencer had come onto him, he also evoked a gay panic defense, an unofficial strategy commonly used to win sympathy and get reduced sentences from presumably hetero-predominant juries.
In this case, the jury sentenced Miller to 10 years probation, but Judge Brad Urrutia also gave Miller six months jail time, 100 hours of community service, an $11,000 fine of restitution to Spencer’s family and the requirement to wear a portable alcohol breathalyzer device for one year.
Understanding the gay panic defense
While you won’t find “gay panic” listed as an official legal defense in any law books, it’s often invoked in murder trials to help explain a defendant’s temporary insanity, diminished capacity or self-defense. Defense lawyers use it in hopes of getting first-degree murder charges reduced to second-degree (non-premeditated) murder or even manslaughter (a murder caused without deliberately lethal or malicious intent).
The gay panic defense (and its twin, the trans panic defense) was invoked in the trials following the 1993 murder of trans man Teena Brandon, the 1995 murder of Jenny Jones guest Scott Amedure, the 1998 murder of Matthew Shepard and the 2008 murder of 14-year-old Larry King.
While gay and trans panic defenses don’t often work in court, they apparently did in the Austin, Texas case. Such defenses essentially blame queer people for their own murders by claiming that they provoked their attackers. They also seek to play off societal queerphobia while reinforcing and promoting negative stereotypes of queer people as sexual deviants and predators.
David McConnell, the author of American Honor Killings: Desire and Rage Among Men, says the gay panic defense is also sexist, a cover for toxic masculinity and just a defense for attacking already vilified second-class citizens:
“Gay panic” is not and shouldn’t be a special category. It can be upsetting for men to be the object of unexpected, unwanted desire, but it can be upsetting for women, too, and they have to deal with it much more frequently. As a legal defense, it’s certainly a cop-out. It’s complete bull. … The real issue is that when we say “gay panic,” we put the focus on the group that’s been victimized and not on the source of the violence, which is really the nature of masculinity itself.
Killing the gay panic defense
The Nation LGBT Bar Association successfully saw gay panic defenses banned from California in 2014 and from Illinois in 2017. Similar legislation is currently under consideration in New Jersey, Washington, Rhode Island and the District of Columbia.
While the ban doesn’t prohibit defense lawyers from invoking the defense during trial, the ban requires judges to read juror instructions telling them to “ignore bias, sympathy, prejudice or public opinion in making their decision.” The bans also educate district attorneys’ offices about gay panic strategies and how to prevent queerphobia from affecting trial outcomes.
Cynthia Lee, a legal scholar and professor at George Washington University Law School, has argued that banning the gay panic defense from courtrooms altogether can cause subconscious queerphobia to persist among jurors and is less effective than disproving such defenses in court.
Instead of banning such defenses, Lee says attorneys should root out potential queerphobic jurors during pre-trial juror questioning and then use “gender and sexual orientation switching” during the trial to show how ludicrous, sexist and queerphobic gay panic and trans panic defenses really are.