The Gay Panic Defense

In this article, I examine the use of gay panic defense strategies in the criminal courtroom. I argue that such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators. Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality which is prevalent in today's heterocentric society. Most critics of the gay panic defense have proposed that judges or legislatures should bar gay panic arguments from the criminal courtroom. I take a contrary position and argue that banning gay panic arguments from the criminal courtroom is a bad idea. When gay panic arguments are forced to take a covert turn - when they are not explicit or out in the open - they may actually be more effective. Recent social science research on race and implicit bias suggests that making race salient can diminish the otherwise automatic effect of stereotypes on perception and belief. Conversely, pretending that race is irrelevant and not making it salient allows unconscious racism to operate without any constraints. The same is likely true of other types of bias, including sexual orientation bias. Rather than precluding defendants from making gay panic arguments, I argue that the criminal courtroom is the place where such arguments can and should be aired and battled. The article proceeds in three parts. In Part I, I review the historical origins of the concept of gay panic. In Part II, I examine the doctrinal underpinnings of gay panic defense strategies and theorize about why gay panic arguments are successful. Defendants have linked claims of gay panic to criminal law defenses based on mental deficiency, such as temporary insanity or diminished capacity. More recently, gay panic has been used to bolster claims of provocation and self-defense. I also examine the trans-panic defense, a fairly recent modification of the gay panic defense under which a male murder defendant charged with murdering a transgender individual claims that he panicked upon learning that his sexual partner was biologically male, not female. In Part III, I strike a different path from that chosen by other critics of the gay panic defense. Other critics have proposed essentially the same remedy: barring defendants from arguing gay panic. In contrast, I argue that judges should as a general rule allow such arguments as long as some evidence supports the traditional criminal law defense that the defendant is asserting through the gay panic lens. This is the same standard governing when a trial court must allow a proffered defense used in numerous jurisdictions. To bolster this possibly unpopular position, I start with a micro-argument: attempts to ban gay panic from the criminal courtroom won't work because gay panic arguments can be made sub rosa. I then turn to what might be called macro arguments to support my theory that banning gay panic defense strategies from the criminal courtroom is a bad idea. Three broader frameworks support my position: (1) First Amendment theory; (2) recent social science research on implicit bias; and (3) institutional competency arguments.