Legal Policies in Conflict: The Gay Panic Defense and Hate Crime Legislation

Jenna Tomei & Robert J Cramer. Journal of Forensic Psychology Practice. Volume 16, Issue 4. 2016.

Gay panic refers to a situation in which a heterosexual individual loses control and commits a violent crime against a gay individual when faced with unwanted sexual advances. In court, it is argued the defendant was provoked, defending himself from possible gay rape, or even became temporarily unable to distinguish right from wrong. Despite use in many trials across the country, with varying degrees of success, the conceptualization has little merit based upon its psychological roots. Rather, the strategy appears to rely primarily upon antigay stereotypes. Counteracting gay victimization is the emergence of hate crime laws, enhancing punishments for offenders who unfairly target this group of individuals. However, the use of the gay panic defense appears to be juxtaposed to hate crimes, advocating for less severe punishments of those perpetuating crimes against gay individuals. Legal implications, possible trial strategy, and future research and legislative proposals are offered for cases involving gay panic when considering hate crime research.

On February 12, 2008, a student named Brandon McInerney walked into his school’s computer lab and shot a fellow classmate twice in the head. The targeted victim was Lawrence King, an openly gay 15-year-old student described as “bubbly” and frequently bullied for wearing high-heeled boots and makeup to school (Cathcart, 2008). After the killing, McInerney’s attorneys argued he had reached “an emotional breaking point” after King made repeated, unwanted sexual advances toward him (Gould, 2011). The issue of retaliation for gay advances spurred a multitude of controversies, even being highlighted by Newsweek magazine as “the most prominent gay-bias crime since the murder of Matthew Shepard [to be discussed] 10 years ago” (Setoodeh, 2008). As a result, McInerney was charged with a hate crime, but eventually accepted a plea bargain for a guilty sentence to second-degree murder, voluntary manslaughter, and use of a firearm (Risling, 2011). The case of Lawrence King was monumental in publicly highlighting the issues regarding how one’s sexual orientation could be used as a means of justification for crime within the legal system.

Gay panic, also sometimes referred to legally as the Nonviolent Homosexual Advance (NHA) Defense (Perkiss, 2010), refers to a situation in which a heterosexual individual loses control and commits a violent crime against a gay individual when faced with unwanted sexual advances (Lee, 2003). During the loss of control, it is argued the defendant was provoked, defending himself from possible gay rape, or became temporarily unable to distinguish right from wrong (Suffredini, 2001). The strategy is typically employed by males (Lee, 2008) within the criminal court setting (Perkiss, 2013). Less common, but similar in nature, is the utilization of a trans panic argument, in which a man reacts with violence to a transgender woman (Steinberg, 2005). In such cases, the male defendant will argue he lost all self-control upon the discovery the woman he had been sexually intimate with was actually born a man. Gay panic cases emerge subtly, as gay panic is not an officially sanctioned, stand-alone defense. Rather, gay panic is used as a means to reinforce the use of legal strategies including diminished capacity, temporary insanity, self-defense, and provocation. Most widely utilized and most successful, however, is gay panic within a provocation framework (Lee, 2003, 2008). As such, the defense tactic aims to prove the defendant should be excused, or at least somewhat justified, in his violent responses to the victim’s actions. Thus, in cases where gay panic is involved, the jury is ultimately asked to consider whether it is reasonable, or somewhat justifiable, to assault or kill someone for making a nonviolent sexual advance. Jury decisions can result in reduced sentences, or even verdicts of not guilty, depending on how and in what legal phase the defense strategy is utilized.

While estimates regarding frequency appear to vary, it appears that as of 2011, the gay panic defense was used in at least 45 cases throughout the nation (United Press International, 2011). Nichols (2013) reports the strategy has been utilized much more frequently, in at least 45 trials from 2002 to 2013 alone. Additionally, Harrington (2009) found 189 appellate cases dating from 1952 to 2005 in which defense arguments referenced unwanted gay advances. Moreover, the arguments were used in reference to both trial strategy and in simply describing the facts of the case. Thus, estimates point to varying frequencies and no clear statistics are known. Regardless, the concept of gay panic appears to occur in many cases and the history of case law and resulting verdicts should be considered in an effort to understand why the defense strategy is sometimes successful in reducing culpability.

The use of the defense dates back more than 40 years prior to the Lawrence King case to People v. Rodriguez (1967), in which the defendant pleaded temporary insanity due to intense fear he was going to be molested by the victim, a gay man. In the Rodriguez case, the jury rejected the insanity plea and found Rodriguez guilty of second-degree murder. Despite the failure of the defense, the Rodriguez case set the stage for future cases and similar defense strategies seemed to gain momentum, being used in several cases thereafter and especially popularized by the murder trial of Jonathan Schmitz (Michigan v. Schmitz, 1998). Dubbed “The Jenny Jones Case” within the media (e.g., Page, 1999), Schmitz was asked to tape a segment for the popular talk show “The Jenny Jones Show” under the guise a secret admirer would be revealed. As a heterosexual male, Schmitz agreed to the taping, assuming his admirer would be either his ex-girlfriend or another woman. Schmitz was surprised and humiliated to find out his secret admirer was not a woman at all, but his best friend Scott Amedure. Three days after the television show taping, Amedure left a note containing sexual innuendos at Schmitz’s house. During trial, it was argued by the defense that the televised sexual advances and the suggestive note led Schmitz into gay panic in which he became enraged, bought a gun, and killed his best friend. The defense somewhat worked, as the jury sympathized with Schmitz and found him guilty of the lesser offense of second-degree murder, rather than first-degree murder.

Also occurring in 1998, a college student, Matthew Shepard, was targeted by two men, Aaron McKinney and Russell Henderson, for being gay (State v. McKinney, 1999). Allegedly fueled by their antigay attitudes, the two men offered to give Shepard a ride home, but instead took him to a rural area, tied him to a fence, and brutally attacked him, leaving him for dead. While Henderson took a plea bargain, Aaron McKinney opted to go to trial, offering various rationales for his actions. Initially, he wanted to utilize the gay panic defense, arguing he was driven to temporary insanity by alleged sexual advances of Shepard. However, the judge rejected the defense strategy (Janofsky, 1999) and he was instead found guilty of felony murder (Cart, 1999). Like the Jenny Jones Case (Michigan v. Schmitz, 1998), Shepard’s murder was monumental in highlighting the legal strategy of gay panic; however, it also had an opposite reaction, as the defense spurred requests for hate crime legislation. Based on the high-profile cases discussed, it is clear the defense is a controversial one that has elicited many different outcomes. This paper aims to review how gay panic operates within the legal system and is inherently juxtaposed to legislation aimed at protecting LGBT victims of crime. Implications for trial consultants and future research and policy efforts are provided.

History of Gay Panic

The concept of gay panic was originally coined by clinical psychiatrist Edward Kempf (1920) in response to treating several patients who appeared to exhibit similar symptomology. Specifically, Kempf argued that some patients who identified as heterosexual were actually latent gays suffering from immense inner turmoil and internalized homophobia. When confronted with a sexual situation in which someone of the same sex was present, the patients exhibited heightened anxiety, as they had reciprocal feelings, but were fearful of societal repercussions. However, Kempf argued it was not the same-sex contact itself that induced the panic-like state. Rather, being separated from the gay individual, to whom they were attracted, led to the panic. Thus, the current clinical conceptualization of gay panic occurring in response to sexual advances has little support when looking at Kempf’s original hypothesis.

The idea of gay panic may also have roots in the view of sexual minority status as a pathological disorder. Despite empirical evidence that sexual minority status is not inherently linked to psychopathology (e.g., Freedman, 1971; Gonsiorek, 1982; Hooker, 1957), some professionals and lay people alike still hold negative attitudes toward sexual minorities. According to Suffredini (2001), many view heterosexuality as a type of social control in which gay persons are seen as deviant and out of control. As such, gay individuals are often viewed within the cultural stereotype of predators who make unwarranted sexual advances. Further, sexual advances made by a gay individual are perceived to threaten the masculinity of a heterosexual, by sending unwanted signals to others that the heterosexual is also gay (Lee, 2013). In sum, evidence of the relationship between gay panic and psychiatric illness producing a violent, fugue-like state is not supported, and appears to be fueled by long-standing theories related to latent homosexuality, as well as sociopolitical views of sexuality.

Current Conceptualizations of the Gay Panic Defense

Legal experts disagree on whether to allow the concept of gay panic into court, with some maintaining the strategy is illegitimate and relies solely on the antigay biases of judges and juries (Suffredini, 2001). In congruence, Mison (1992) argues when judges allow the gay panic defense they are symbolically reinforcing the institutionalization of violent antigay prejudices, while minimizing tolerance and self-control. Further, courts make it clear when the defense is allowed that violence against gays may be excused (Suffredini, 2001). In addition, Wall (2000) argues how stereotypes substantiated by the defense are especially prominent against gay males, as evidenced by few cases of gay panic involving a lesbian victim and woman defendant. Indeed, no cases have ever involved the strategy of “straight panic,” in which violence is used to ward off a nonviolent heterosexual advance.

In opposition, others argue the defense should not be categorically barred, as it does exhibit some legal link to provocation, or conduct in which one induces another to commit a particular act (Gale Cengage Learning, 2011). Lee (2008) contends if banned, defense attorneys will entertain different methods to get the same message across to the jury, such as making jurors aware of the victim’s sexual minority status, but not making it as salient. In merely mentioning the sexual orientation of the victim, jurors’ implicit biases regarding sexual minority status persons may be activated. Without claims of gay panic being out in the open, cognitive processing may be unable to override automatic stereotypes and thus could potentially have a more intrusive and implicit impact on the minds of the jury. In addition, to take away an arguable defense may open more doors for appeal and be seen as a violation of free speech and the right to a fair trial (Lee, 2008). For instance, Lee notes both our country and legal system are founded on the idea in which both good and bad ideas can be expressed and debated in an open forum, both in the courtroom and in jury deliberation. Thus, by allowing the defense, a number of institutional players can either discredit the argument or engage in a dialogue of its merit.

Despite valid arguments in support for the freedom of making a defense, critics of gay panic contend legislature should specifically indicate any nonviolent gay advance should not constitute legal provocation of any kind (e.g., Mison, 1992). As of 2009, such legislation has been enacted in New Zealand where the gay panic defense, formally known as the “Partial Defense of Provocation” (Section 169 of the Crimes Act, 1961) was abolished (Section 4 of the Crimes [Provocation Repeal] Amendment Act, 2009; Roth & Blayden, 2012). It has also been eliminated in several Australian jurisdictions (Victoria, Western Australia, and Tasmania) and transferred to the sentencing phase in others (Fitz-Gibbon, 2012). As of current, there appears to be no such legislation present within the United Kingdom or the majority of the United States, and as such, gay panic is a viable defense strategy. However, the defense appears to be a major concern among the American Bar Association, as the misuse of the idea of gay panic encouraged a recent motion to state legislatures to eliminate the defense (American Bar Association, 2013).

In congruence with the American Bar Association’s call to action, on September 27, 2014, California Governor Jerry Brown signed into law a bill banning the gay and trans panic defense in all murder and assault trials (Assembly Bill No. 2501, 2014; Paulat, 2014). California is the first and only state to officially banish the defense as a response to several high-profile cases in which reduced sentences were given to perpetrators of murders and assaults on the gay, lesbian, bisexual, and transgender (GLBT) community. For instance, in the murder case of Brandon McInerny, charged with shooting classmate Lawrence King (previously discussed), the case resulted in a hung jury after the gay panic defense was utilized. The defendant ultimately took a plea bargain for second-degree murder and voluntary manslaughter, rather than first-degree murder (Risling, 2011). Additionally, the trans panic defense tactic was utilized in one of the trials over the murder of Gwen Araujo, a transsexual who was brutally beaten by a group of men, two of whom were past sexual partners (Chokshi, 2014). The case of Gwen Araujo spurred the signing of the Gwen Araujo Justice for Victim Act into law by Governor Arnold Schwarzenegger on September 28, 2006. Although not abolishing gay panic itself, the law aimed to dissuade prejudice by allowing a legal party to request the court to address the jury “not to allow bias based on sexual orientation, gender identity or other protected bases to influence their decision” (Gwen Araujo Justice for Victim Act, 2006). The bill set the stage for ultimately banning the defense in California. Following suit, New York Assemblyman Ruben Diaz, Jr., introduced a similar measure after the proposal of the California Gwen Araujo Justice for Victim Act (Rostow, 2006). However, it is unknown where the status of the New York bill currently stands. Thus, California and New York are the only states currently who have attempted to curtail the effects the gay panic defense has on verdicts.

With legal scholars and case law often at odds when it comes to utilizing such a defense, there are minimal experimental studies to date on how potential jurors play into the idea of gay panic. Harrington’s (2009) review of 189 appellate cases show 13% of the cases had success with a gay panic argument, as evidenced by reduced sentences in either the original trial or on appeal. Further, Salerno et al. (2014) argue the statistics reported by Harrington may be an underrepresentation, as only appellate cases were examined and gay panic success in the original trial would likely not have been appealed. In 2010, Plumm, Terrance, Henderson, and Ellingston conducted the first mock-juror study involving a vignette of the gay panic defense. Undergraduate students were asked to read a vignette of a hate crime in which a defendant assaulted a victim either at a local bar or a gay bar. Additionally, the assault was described to occur either after the victim put his arm around the defendant and asked him to dance or with no provocation. Judgments of guilt were unaffected by either manipulation; however, mock jurors blamed the victim more when he made the sexual advance than when no provocation was involved. In a later study by Kraus and Ragatz (2011), male jurors were found to be less punitive on defendants in gay panic scenarios when a male-on-male sexual advance was described compared to a female-on-female advance. When instructed not to consider their biases, as is common in instructions to jurors, the effect of sex was eliminated. Also noteworthy, homophobia was found to be a significant predictor of defendant guilt and sentence length.

None of the aforementioned studies discussed compared gay panic to an identical, but heterosexual provocation defense. Therefore, Salerno et al. (2014) examined the effectiveness of gay panic within a provocation defense, while also looking at the function of each mock juror’s political orientation. Results indicated political orientation did play a role, as conservative participants were less punitive in the gay panic condition where a sexual advance was mentioned. Conversely, liberal participants were unaffected by the gay panic manipulation. Studies examining components of gay panic have been instrumental in providing some empirical support for the acceptance of the defense strategy. Nonetheless, much is still unknown regarding the mechanisms at play within jury decision making.

Gay Panic Versus Hate Crime Legislation

While psychology and the law have differing perspectives on gay panic, the understanding of factors such as pathological views, antigay victimization, and blaming may help further evaluate the validity of the gay panic defense. Highlighted by the mere use of gay panic arguments in court, prejudicial beliefs against sexual minorities contribute to disparity within the legal system. One legislative effort aimed at counteracting the unfairness displayed toward sexual minorities is the development of hate crime laws.

Hate crimes are defined as criminal acts “motivated by biases based on race, religion, sexual orientation, ethnicity/national origin, and disability” (Federal Bureau of Investigation, 2012). As such, they are driven by one’s perceived membership within a certain group. Hate crime legislation operates according to the assumption that offenders contribute to the unfair treatment of members of minority groups (Adams, 2005) and accordingly should be held accountable for perpetuating prejudicial treatment. Currently, all statutes involving hate crimes include ethnicity, religion, or race as minority groups that are legally protected. However, only 31 of the statutes include sexual orientation, while merely 12 include transgender or gender identity (Gerstenfeld, 2011). Thus, many states neglect a subset of individuals who are often targeted within criminal acts.

Hate crime laws and the subsequent consequences for offenders are quite diverse, and vary from jurisdiction to jurisdiction, with some laws enhancing the penalty and others indicating a hate crime as a separate offense in addition to the original crime (Adams, 2005; Gerstenfeld, 2011). Further, what constitutes a hate crime differs with state law. For instance, in some states any criminal act may qualify as a hate crime, while other states limit the offenses to assault or harassment (Jacobs & Potter, 1998). In addition, some states require the victim be officially targeted and chosen “because of” or “by reason of” membership in a particular minority group, whereas others only specify some evidence of prejudice is necessary (Gerstenfeld, 2011). Regardless of the statute delineating a crime fueled by hate, individuals found guilty face more severe penalties.

A landmark case highlighting crimes against the gay community, in particular, was the Matthew Shepard case (previously discussed; State v. McKinney, 1999). The heinous slaughter of Matthew Shepherd, on account of his sexual identity, was one of the most publicized cases in recent history and resulted in a multitude of advocacy and legislative responses. For example, in 2009 the Matthew Shepard and James Byrd, Jr., Hate Crime Prevention Act (HCPA P. L. No. 111-84) was passed by the United States House of Representatives (Gerstenfeld, 2011). The act aims to include protection to individuals targeted by their sexual orientation or gender identity (Gerstenfeld, 2011). In addition to increased legislation aimed at protecting this subset of victims, the Shepard case also highlighted how GLBT individuals are at an increased risk for negative consequences following a crime. For instance, victimized GLBT individuals are risk to numerous psychiatric effects such as anger, depression, stress, anxiety, and fear of future victimization (e.g., Herek, 1994; Meyers, 2013; Taylor, 2007). Additionally, the case fueled research in the arena, which subsequently demonstrated how anti-GLBT hate crimes tend to be more violent than crimes against racial minority victims (Stacey, 2011). Despite increased responses, GLBT individuals currently remain among the most victimized groups in the country (Federal Bureau of Investigation, 2012).

Public Support of Hate Crime Legislation

Hate crime laws are sometimes entangled with views of morality, as societal beliefs are often reflected within the legal language and enforcement of the law (e.g., Berard, 2010). Consequently, hate crime legislation has been met with some backlash by certain groups. Similar to gay panic, numerous concerns have been raised regarding the issue of freedom of speech (Bessel, 2010). Others have argued laws create an inequity between hate crimes and other types of criminal acts (Sullaway, 2004) and burden the already overwhelmed legal system (Glasser, 2005). However, there appears to be general agreement that perpetrators of hate crimes deserve enhanced retribution (Glasser, 2005). Additionally, participants comply with the instructions delineated by hate crime laws to increase perpetrator blame and punishment, although compliance is moderated by their agreement with the penalty enhancement portion of the legislation (Cramer, Wakeman, et al., 2013). Thus, societal beliefs and support for legislative protection may be one reason why many hate crime laws currently neglect sexual orientation. Debates concerning both points of view often play out within the courtroom setting.

Blame Attribution

Attribution of blame within the trial setting may be another contribution to the disparity seen with GLBT victims of crime and the consequent need for hate crime legislation. The process in which one assigns blame is complex and entails both psychological and environmental components. In the criminal arena, blame attribution refers to the process in which an observer makes sense of what occurred in order to reduce feelings of anxiety regarding the crime (Gudjonsson, 1984). In doing so, the perceiver must evaluate the cause of the criminal act (Shaver, 1985), while also considering the moral responsibility of the perpetrator (Shaver & Drown, 1986). Further, literature on blame (e.g., Alicke, 2000; Chockler & Halpern, 2004; Cramer, Nobles, Amacker, & Dovoedo, 2013; Mikula, 2003; Nadelhoffer, 2006) highlights several factors that inform the attribution process, including the perpetrator’s intent to do harm during the crime, the degree to which a crime was causal versus accidental, observable responsibility of the parties involved, and the moral reprehensibility of the criminal act.

In putting the pieces together, some observers may have the inclination to view the victim as playing a role in the crime. One reason to place any element of blame on the victim may be due to an intrinsic belief the world is a safe place in which criminality and victimization can be controlled for. Similar is the belief in a just world, a theory postulating individuals get what they deserve, and good things happen to good people whereas bad things happen to bad people. In assuming the victim is bad and essentially deserving of what occurred, the observer may believe himself or herself to be less at risk for a similar misfortune (Aguiar, Vala, Correia, & Pereira, 2008; Amacker & Littleton, 2013; Lerner, 1980) Another explanation going beyond self-preservation is the Culpable Control Model (Alicke, 2000), which stresses the perceiver’s automatic reaction to the victim’s misfortune. Thus, an observer may be likely to attribute blame to a victim if the victim evoked a negative emotional arousal. For instance, a murdered prostitute may be given more responsibility due to the negative reaction a juror may have when learning of her profession. Cramer, Nobles, et al. (2013) found evidence of a multifaceted structure of victim blame based on perceptions of malice (a victim’s high and overt intention to harm the perpetrator), recklessness (low to moderate intent to harm), and unreliability (low intent to harm). Only victim malice affected decisional outcomes, such as the likelihood of assigning the death penalty in a capital murder situation. However, all factors were positively associated with homonegativity. Simply put, if a juror has a negative attitude toward gay men and believes the victim had an intention to harm the perpetrator, the victim will be considered more blameworthy. Lastly, Defensive Attribution Theory, proposed by Bell, Kuriloff, and Lottes (1994), is the idea that blame attributions are a function of one’s identification with the victim. As such, one who strongly identifies with a victim is less likely to attribute blame than one who is vastly different than the victim. Thus, an individual who is not within a GLBT minority group may not be able to identify with, and may therefore bestow more responsibility on, the victim.

Craig and Waldo (1996) support the idea of victim blame attribution models within the criminal setting, as hate crime victims are viewed as at least partially responsible for their victimization. Similar to victims of rape, victims of hate crime assaults are frequently blamed and viewed as deserving their attack (Herek, 1994; White & Yamawaki, 2009). Indeed, Cramer, Clark, Kehn, Burks, and Wechsler (2014) found that in hate crimes specifically, victim blame had negative effects on sentencing recommendations. That is, mock juror participants gave more lenient sentencing recommendations when they blamed the victim more than when they blamed the victim less. Conversely, jurors who placed more blame on the perpetrator gave longer sentencing recommendations. Additionally, both were moderated by support for hate crime legislation. Nonetheless, there appears to be somewhat of a shift in societal beliefs, as some studies show support for GLBT victims of hate crimes. For instance, Rayburn, Mendoza, and Davison (2003) found participants viewed hate crime victims as more innocent than a victim of a nonhate criminal act. Additionally, participants blamed the victim in the hate crime conditions less than in the nonhate crime condition. Interestingly, however, participants with prejudicial attitudes tended to blame victims in any condition as more culpable. Thus, an individual’s degree of prejudice or homonegativity can color his or her legal decision making. Cramer, Wakeman, et al. (2013) found similar results, as victim blame was lower when the victim was described as gay versus heterosexual or sexuality unspecified. In conjunction, harsher sentences were garnered when evidence of a hate crime was provided. Indeed, results of sentencing were moderated by mock jurors’ homonegativity and authoritarianism. Further, Cramer, Kehn, et al. (2013) found people lower in the need for affect, or those unwilling to engage in emotional responses (NFA; Maio & Esses, 2001), were more likely to blame the victim. On the other hand, people high in the need for cognition (NFC; Cacioppo & Petty, 1982), or those willing to engage in effortful processing, blamed perpetrators more after hearing that a crime was motivated by hate. Therefore, it appears blaming the victim in cases of hate crimes may be moderated by juror characteristics.

Extending Blame Attribution to Cases of Gay Panic

Although there has been little empirical investigation of blame attribution within the gay panic arena, it is likely that much crossover exists when considering the operation of blame in hate crime cases. Similar to what is exemplified in the hate crime literature, levels of homonegativity are shown to effect the level of blame bestowed on the victim when gay panic is argued (Plumm, Terrance, Henderson, & Ellingson, 2010). Thus, it is likely several theories outlined above may be at play in cases of gay panic as well. For instance, the Defensive Attribution Theory (Bell et al., 1994) may operate such that jurors high in homonegativity have harder times relating to a GLBT victim and will therefore be more likely to blame them for their role in the crime. Conversely, individuals high in homonegativity may also relate to the defendant, believing the gay advance was so reprehensible it warranted a violent response. Consistent with the Culpable Control Model (Alicke, 2000), jurors who are high in homonegativity will have an automatic negative reaction to a victim who identifies within a sexual minority group. Thus, they are likely to rationalize the criminal act due to an immediate negative response regarding the same-sex advance.

An understanding of modern prejudice may also serve as a grounding for the varying outcomes of gay panic cases. Unlike overt acts of discrimination (e.g., lynching, segregation), modern prejudice (Sears & Henry, 2005) operates according to a much subtler and more implicit nature. For example, individuals may know discrimination is wrong, but act in ways that serve to reinforce their stereotypes and bolster the inequality seen among different groups. The justification-suppression model (Crandall & Eshleman, 2003) was generated upon this notion, but with the idea that expression of prejudice can oftentimes be at conflict with cultural norms. Accordingly, the model posits that, as individuals learn how straightforward prejudice is negatively perceived by society, they become motivated to suppress their prejudicial actions. Prejudice can only be expressed without guilt or shame, however, when justifications exist (e.g., attribution, ideologies, stereotypes).

In cases of gay panic, it may be that jurors’ prejudicial beliefs are given the context to be expressed without societal repercussions. For instance, jurors can justify being more lenient on a defendant by relying on the defense’s argument that he was provoked by the sexual advance. Consequently, it is possible using the gay panic defense creates a framework in which legalized discrimination can take place. Plumm et al. (2010) provide some evidentiary support for the justification-suppression hypothesis, as mock juror participants blamed the victim more when he made a sexual advance than when no element of provocation was involved. In conjunction, Cramer, Nobles, et al. (2013) found victim malice affected decisional outcomes. In gay panic cases, the same-sex advance can be perceived as malicious and therefore acceptable to draw upon prejudicial beliefs.

Findings by Salerno et al. (2014) suggest political orientation is a juror characteristic that may also play into victim blame. Although the direct effect on victim blame was not tested in the study, the authors found the effect of the gay panic manipulation on punitiveness was moderated by political orientation. Therefore, when considering political orientation especially, the two-stage or motivated correction hypothesis (Skitka, Mullen, Griffin, Hutchinson, & Chamberlin (2002) may account for success in a gay panic case. According to this hypothesis, both liberals and conservatives are equally likely to make first pass personal attributions about a given situation or event (e.g., why criminals commit crimes). Where the groups differ, however, is their motivation to engage in a second, correctional thinking process when the initial conclusion is inconsistent from core values. Across several studies (Skitka et al., 2002), a more effortful process was shown to take place with liberal versus conservative participants, in which other external factors were considered. Converging with Salerno et al.’s work (2014) in the gay panic context, conservative jurors may be more inclined to rely on their first judgments about the victim, their sexual minority status, rather than considering external sources of responsibility from the defendant. In addition to political orientation and similar to what is observed in hate crime literature (e.g., Cramer, Kehn, et al., 2013), a high need for cognition may also target a potential juror’s ability to engage in the motivated correction hypothesis.

In sum, several social psychological models may account for the varying degrees of success in utilizing the gay panic defense. In looking to the theoretical literature on hate crime support, multitudinous similarities are also apparent. It is essential to understand the nuances of victim blame because judgments during high-profile legal cases such as the Lawrence King and Matthew Shepherd cases are likely to influence legislation, as well as perpetuate stereotypes regarding minority groups.

Inconsistencies in the Law

Despite consideration of victim blaming and the enhanced penalties or additional charges for crimes targeting a minority community, there appears to be an inconsistency in criminal doctrine when comparing the gay panic defense to hate crimes. While victims in gay panic cases are most often gay males and anti-sexual-orientation hate crimes are focused mainly on gay males (Cheng, Ickes, & Kenworthy, 2013), it would stand to reason some crossover exists. However, gay panic is juxtaposed with hate crime laws in three ways (Perkiss, 2013). First, the gay panic defense essentially legitimizes homophobic violence, whereas hate crime legislation aims to punish such behavior. By allowing such a defense to be introduced in court, the law recognizes the potential for reduced culpability for violence against the same groups who are victims in hate crimes. A second difference is the disproportionate punishment bestowed on defendants in each kind of case. Hate crime legislation suggests violence powered by homophobic beliefs is deserving of enhanced punishment in comparison to nonhomophobic violence. However, this reasoning does not stand when considering a gay panic case, as the homophobic defendant who victimized a gay individual is arguing for reduced culpability and subsequently less severe penalties. Thus, while both conditions are the same, the defendant who invokes the defense strategy may face fewer consequences. A final inconsistency to note is the conflicting messages being transmitted to society and victimized groups. McCoy (2001) argues that hate crime legislation and the use of the gay panic defense are essentially working against each one another.

Consequently, the courtroom is a setting in which the debate over what constitutes a hate crime, how much blame is attributed to a victim or perpetrator, and whether the gay panic defense constitutes a hate crime can be decided upon by jurors. With the exclusion of sexual minorities in many hate crime statutes, and juxtaposing legal doctrines such as the gay panic defense, issues remain unsolved and remain open to interpretation by jurors and legal decision makers alike, stereotypes included.

Future Directions and Applicability to Trial Consulting

Although current legislature in most states allows a defense that draws upon prejudice within the courtroom setting, legislative changes can attempt to break the cycle of perpetuating negative stereotypes of the GLBT community. Drawing upon California’s Gwen Araujo Justice for Victim Act (2006), legal jurisdictions should implement a similar process in which the judge is mandated by law to instruct the jury not to consider biases regarding sexual orientation in cases involving a claim of gay panic. For instance, a judge could give an instruction prior to the start of a case such as, “The case you are about to hear includes information about both the defendant and the victim’s sexual orientation. Although you may have various feelings related to sexuality, you are not to allow bias based on sexual orientation or gender identity to influence your decision. Instead, decisions should be based only upon the evidence presented.” Rather than banishing the defense altogether, a direct instruction related to possible biases may overcome naturally occurring prejudice and may enable jurors to prepare themselves to disregard information they may have faultily relied upon. Such instruction would need to be crafted in easily understood language; however, empirical data demonstrates that jury instructions aimed at reducing prejudice may fall short if jurors fail to comprehend such instructions (e.g., Lynch & Haney, 2000). Additionally, jurors would be ordered to consider evidence in a more rational and analytical manner, unlike one naturally based on stereotypes and emotion.

In conjunction with new policy, judicial training regarding the defense strategy also needs to be implemented. Even if state law allows that the defense and jurors are warned prior to the start of a trial, judges have the power to act as gatekeepers in allowing faulty evidence to be heard or dismissed. For instance, defense expert testimony on gay panic should be ruled as inadmissible based on the Daubert standard (1993), as gay panic is not scientifically valid nor is it widely accepted within the psychological community. Therefore, increased awareness with judges in particular may severely hinder defense “evidence” for gay panic to even be considered by jurors.

Until major legislative changes are enacted, attorneys and trial consultants, who are often social scientists, need to be educated on the lack of validity of gay panic and the psychological and social mechanisms at play. With the American Bar Association (2013) taking a stand against gay panic, perhaps a training session in the form of a continuing education course should be offered for attorneys working within the criminal law arena. At the proposed training, current literature illuminating the faulty underpinnings of gay panic could be discussed. Moreover, attorneys could be given consultation regarding possible ways in which to combat the defense in court through methods such as jury selection and expert witness testimony.

Jurors bring many individual differences to the jury box that aid in the way they assess trial information and ultimately come to a conclusion. By being aware of attitudes and personality characteristics that may color the perception of gay panic, attorneys can choose a jury wisely, setting the stage for a fair and unbiased trial. Trial or jury consultants are often social scientists bringing relevant empirical expertise to bear on the trial process (Cramer & Brodsky, 2014). In this instance, consultants can use existing literature on gay panic, highlighting potentially useful juror characteristics. For example, homonegativity and political orientation are two constructs identified as being particularly relevant to cases of gay panic (Kraus & Ragatz, 2011; Salerno et al., 2014). Currently, many psychometrically sound instruments are available to assess such constructs (e.g., the Index of Homophobia scale; Hudson & Ricketts, 1980). Additionally, simple questions such as, “When it comes to politics, I identify as conservative,” have been used to assess constructs such as political orientation and are supported with use in past research (e.g., Clark & Wink, 2012; Stevenson, Bottoms, & Diamond, 2010). Therefore, attorneys in cases of gay panic could utilize items as such to tap into case-specific constructs during the voir dire process, striking jurors who respond in the affirmative to preemptive questions such as, “I would enjoy attending social functions at which gay men or lesbian women were present.” In striking or deselecting potential jurors likely to blame the victim, rather than the perpetrator, a gay panic claim may be less likely to be successful.

General criminal case variables may also be worthwhile to pursue as a trial consultant and include characteristics such as authoritarianism, victim blame or pro-prosecution beliefs, belief in a just world, need for affect, and need for cognition. Indeed, there appears to be much crossover with gay panic defenses and hate crimes, indicating trial consultants may also draw from hate crime research in identifying possible juror characteristics at play. Perhaps asking jurors about their beliefs regarding hate crime legislation would be illuminative in how they may perceive gay panic. For example, it is likely that a juror who supports enhanced penalties for perpetrators of hate crimes would not buy into the idea of gay panic and, as such, should be deselected during the jury selection process. Thus, understanding how each legal strategy is juxtaposed could prove to be helpful in the consulting arena.

In addition to juror selection, Perkiss (2013) suggests the issue of gay panic can also be addressed directly during the trial process. To do so, prosecutors should be advised to educate jurors about how the psychological phenomenon of gay panic is unsubstantiated as a legal claim. As evidence, both Kempf’s (1920) original research, as well as the removal of both homosexuality and gay panic from the DSM, should be outlined by expert witnesses consisting of credible psychologists familiar with the literature. By digging deep into the science behind the claim and the many inconsistencies surrounding it, prosecutors will attack stereotypes and be able to show why the criminal behavior is not rationalized. While gay panic may exist in a defendant’s mind during unwanted sexual advances, attorneys should continuingly stress how no data exists in which the psychological moment of panic is translated into retaliatory violent behavior.

Clearly the psychological validity of gay panic is one that is predominantly foreign to jurors, as the legal defense strategy is sometimes viewed as legitimate in psychological studies and has resulted in legal success in trials throughout the country. While attorneys and legal players combat the defense in the short-term, there needs to be continued advocacy to address the link among hate crimes, gay panic, and the perpetuated victimization of the GLBT community. Due to minimal empirical research regarding gay panic, there are many avenues left to explore. For example, future research needs to first examine public perceptions of gay panic, particularly compared to other novel defense strategies. It is of interest whether jurors who buy into the notion of gay panic would also buy in to other seemingly unsubstantiated strategies, such as the Twinkie Defense used in the murder trial of Dan White, or if the defense merely works because it is fueled by sexual prejudice. Further, only three published studies have examined the mechanisms at play in a gay panic case, and the methodologies across the studies vary greatly. For instance, no study has examined gay panic across different types of defense strategies (i.e., provocation versus insanity). Although gay panic is most commonly utilized in a provocation framework, it remains unknown just how much jurors may buy into gay panic (i.e., can they rationalize the crime versus completely excusing the behavior). Further, it is unclear whether the same-gender sexual advance drove the results found in previous literature, as only one of the studies (Salerno et al., 2014) utilized a control group of an identical provocation defense, minus the sexual orientation component. Accordingly, future research exploring the operation of gay panic needs to address the insanity defense and include a control group or a comparison group (such as the Twinkie Defense) to ensure results are derived from prejudice regarding sexual minorities.

Consequently, the current research, while providing an excellent preliminary basis for understanding gay panic, still leaves much unknown. By examining how the defense utilized affects outcomes and identifying case-specific factors influencing support, the phenomenon of jury decision making in cases of gay panic can be better understood and, in turn, aid in court deliberations and policy making.