Queers and Provocateurs: Hegemony, Ideology, and the “Homosexual Advance” Defense

This exploratory article relies upon a historical-interpretive approach to understanding the relationship between legal narrative and popular consciousness in particular historical moments, focusing especially on "troubled times," in which the legitimacy of a hegemonic worldview embodied in law comes under challenge from a newly ascendant ideology in the popular domain. To discern the nature of that relationship and its implications, I offer a three-pronged analysis, drawing on two original data sets. Initially, each data set is analyzed individually to elaborate the nature of, and changes in, (1) representations of homosexuals circulating in popular culture, and (2) constructions of homosexuals in defendants' narratives in "homosexual advance" homicide cases between 1946 and 2003. Findings from these two analyses are thereafter combined to explore the relationship between the two constructions of homosexuals across that time period. In combination, these three analyses provide empirical evidence that, rather than mirroring changes in popular discourse about homosexuality, the changes revealed in the defense narratives actually opposed them. I use these findings to argue that, in what Swidler (1986) has called "unsettled times," ideological pluralism is pronounced and may be discerned in the complex and sometimes counterintuitive relationships that exist within and between legal narrative and popular discourse. On July 9, 1999, Kenneth Washington and Alexander Nicholai met at a local bar. Sometime after midnight, the pair returned together to Nicholai's home. There, Washington claims, he passed out. He later awakened, allegedly to find Nicholai on top of him, attempting a sexual assault. Washington says he seized a knife and used it to fend off Nicholai's advances. Nicholai's naked and lifeless body was found by police about eight hours later. Having confessed to the killing, Washington was brought to trial on charges of first-degree murder. In the courtroom, the defense described the victim to the jury in terms that drew heavily on classic, stereotypical scripts that cast homosexual males as violent, rapacious monsters. Describing the victim as a "Dr. Jekyll and Mr. Hyde" predator, the defense alleged that "[tjhere were two Mr. Nicholais. The first one was the outdoorsy guy... the guy with the choir, who could hold a job." The second was a monster"buying beers for young men, hiring them to his home to take [sexual] advantage of them" ('"Homo Panic' Defenses in CA and AK," The Advocate, "News and Politics," 23 May 2000. http:// www.planetout.com/news/article.html?2000/05/23/3 [accessed 3 April 2004]). Washington's counsel asserted that, given the circumstances, the defendant had the right to stab Nicholai as many times (27) as he felt were needed to be sure he was dead. Throughout the twentieth century, the specter of the pathological, predatory, sexually violent deviant played a significant role in shaping discourse about homosexuality. In fact, prior to the 1950s, what passed as popular knowledge about male homosexuals could be defined almost exclusively in those terms. I argue, however, that by the time the defense narrative in the case described above was being presented to jurors, prevailing cultural representations of homosexuals were no longer consistent with the images that anchored the defense's narrative. Instead, homosexuals had come to be represented and talked about in a wide array of new roles, including rights-claimers, life-partners, adoptive or biological parents, politicians, sports heroes, arbiters of taste and fashion, average citizens, etc. In other words, the defense narrative did not fit the times. At first glance, the defense's depiction of Nicholai and the prevailing nature of contemporaneous popular representations of homosexuals present a discrepancy that could seem difficult to explain. Within a constitutive framework, for example, law is regarded as a factor that helps organize and interpret phenomena, including social relations; at the same time, social relations shape, give force to, and help determine the content of law. …