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New Jersey Employment and Civil Rights Attorney Discusses "Gay Panic" Legal Defense" Or . . . "Don't Panic!"

Bear with me. I know what the title of the blog says, but I want to make a point first.

A long time ago, in Ancient Greece, one man was standing next to another when the second man said something that the first man considered blasphemous - against the gods. Because the first man was afraid that the second man would be struck by lightning from Mount Olympus on the spot, and that he, the first man, would suffer by proximity, he killed the second man to save his own life.

Greece may have gotten a lot of things right with regard to early experiments in democracy, but they didn't get this one right. The first man was acquitted by a solemn jury of his peers because it was perfectly understandable why he would kill the second man to save his own life.

I guess we could call that "God panic."

In the middle ages, in England, a man was put on trial for beating his wife to death. He had found her in bed with another man. The man was not charged with, and therefore not convicted of, murder. Rather, he was forced to repay the dowry that the woman's family had paid to him when the marriage was arranged, because his beating essentially voided the marriage contract.

The man, for his part, testified about how embarrassing it was to have been cuckolded by his wife in the eyes of his fellow townsfolk.

I suppose we would call that "Wife panic."

Just before the civil war began, a plantation and slave owner in Georgia found that one of his slaves had what the owner believed to be a contagious pox. He had the slave killed and his body burned, lest that slave infect the other slaves on the property. The man was not charged with anything, and was not convicted of anything.

I guess we would call that "Pox panic."

You see where I'm going with this?

"But Kevin, all those stories are from long ago," you say, and right you'd be. Yet, today, in the United States of America, in the 21st Century, we have a concept enshrined in our law as every bit as stupid as the three examples above discussed.

Mayor Marco McMillian, Mississippi's first openly gay mayoral candidate, was murdered about 13 months ago. His body was burned and abandoned. He was the only son of his parents and his parents were left to mourn him in the face of a terrible tragedy.

The murderer, Lawrence Reed, was indicted by a grand jury. In the press coverage of the event, it was revealed that Reed intended to use McMillian's sexual orientation to mitigate the charges against him. In short, he intended to use what has come to be called the "gay panic" defense.

This defense allows the perpetrator of a crime to use the sexual orientation of the victim of that crime (or in the case of a transgender person, the fact that the victim is a transgender person) to mitigate the charges against them on the grounds that the person was "panicked," - alarmed or embarrassed - by what the victim's sexual orientation would say about the perpetrator.

And how does the perpetrator of a violent crime use this ridiculous defense?

They argue that they were the "object" of homosexual romantic or sexual advances (in the case of a transgender person, implied in the use of the "trans" version of "gay panic" is the idea that the transgender person is not really a member of their new gender, but rather still a member of the old, and thus in the mind of the perpetrator, the victim is still "gay"). Obviously, the perpetrator of the crime is "so shocked, embarrassed and afraid" - "panicked" - by the advances, the only sensible course of conduct is to become violent.

Let that sink in for a minute, and think about whether you're okay with society being run that way. What happens, for example, if a straight person is the "victim" of a sexual advance by straight member of the opposite sex? Let's say we have a straight woman married to a man and she finds herself being "hit on" by another straight man at the bar. Does she get to kill him because she's "panicked" about what her husband will say? Does the husband get to kill the lothario because he's panicked about what other people will think of him?

Good luck with that argument. Who would stand for that? No one, because we're talking about straight people in those examples. It's not ok for straight people to panic and beat or kill, if they're the object of attention from a straight person. But why is it ok to panic if they're the object of homosexual or trans interest? Put that way, doesn't the argument seem stupid either way?

And yet, in backwards countries like the United States, people use it.

In 1995, in the State of Michigan, Jonathan Schmitz killed his friend Scott Amedure after learning, during a taping of the Jenny Jones Show, that Amedure was sexually attracted to him. Schmitz confessed to committing the crime but claimed that Amedure's homosexual overtures "angered and humiliated him." Legally, this defense turned out not to be so strong not because it's insane, or stupid, or horribly, horribly anti-American, but because he "waited too long" before acting. The reasoning of the court seemed to be that because he waited three days before he acted, the defense was not really "applicable."

Yeah, you've got it. Go with the thought: if he had slain his victim on the spot, then this insane defense would have been "applicable."

In 1998, Matthew Shepard was murdered. The claim by the defendants was that the young man's homosexual proposition to them enraged them to the point of murder. However, Judge Voigt barred this strategy, saying that such was "in effect, either a temporary insanity defense or a diminished capacity defense, such as irresistible impulse which are not allowed in Wyoming, because they do not fit within the statutory insanity defense construct."

Once again, the judge is not saying that the "gay panic" defense is not available because it's discriminatory and therefore unconstitutional and therefore un-American; he's qualifying the availability of the defense. In so doing, he's also implying that if the circumstances are right, it's available.

In California, three defendants murdered male to female transgender person Gwen Araujo because they were "enraged" by the discovery that Araujo, with whom they had engaged in sex, had male genitalia. They were allowed to present this defense and as a consequence, the jury actually became deadlocked over it.

I don't need to go on. The fact that these defenses are even remotely acceptable or valid suggests that there's still something "wrong" with being an LGBT person, something especially "bad" which allows violence in response to that "badness" being directed one's way. If there wasn't, then why would someone be allowed to "panic" over it, and thereby, reduce the state of mental culpability necessary to commit a capital crime (or any other?). Obviously, since we wouldn't allow the straight woman propositioned by the straight man to kill him out of panic, we shouldn't be allowing the straight woman propositioned by a gay woman to kill her, either, or for the crime to become less than murder simply because the straight woman was so "panicked" by the terrifying and unfamiliar sensation of a lesbian being attracted to her.

This is all so stupid and ridiculous. It's 2014, the world is small, the internet is large, there are thousands of television channels, and millions of websites. We are bombarded with information about what the rest of the world is doing, all the time. We straight folks all know gay, bi and trans people exist, and that they're no more, and no less, human, than we. Their lives are worth as much as ours are.

It's time to stop "panicking." But really, who's kidding who? No one's really "panicking" any more. They're using "panic" to reflect bigoted teaching from their families, their churches, their communities, their political organizations. They're reflecting the bigotry of others by "panicking."

So yeah, not so much about the defense any more, it's about root causes. Grow up, America.

And don't panic.

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