By now, most of America knows what happened to Matthew Shepard, the gay University of Wyoming student who was pistol-whipped, lashed to a fence and left to die Oct. 6. No one knows yet why Shepard was murdered. But statements made to the press and prosecutors hint at the direction the defense might be tempted to take this case -- down a road that has been too well traveled in American jurisprudence.
Accused murderer Aaron McKinney's girlfriend, Kristen Price, told reporters that robbery was the motive for the crime, but not the only one. Shepard, she says, embarrassed her boyfriend and his friend, Russell Henderson, by making a pass at them in the bar, setting the other patrons to "snickering." "He said that he was gay and wanted to get with Aaron and Russ," Price told ABC's 20/20. Her friends killed Shepard "to teach him a lesson not to come on to straight people," she said.
The idea that it might be somehow permissible to "teach a lesson" about the perils of flirting by beating and killing a gay man is not as far-fetched as it might sound. In fact, this notion has proven persuasive in courtrooms around the country.
The "homosexual advance" defense can reduce murder charges to manslaughter, if self-defense can be proven or if it can be shown that the killing took place in the "heat of passion." A related defense, known as "homosexual panic," is part of an insanity or diminished capacity plea. The homosexual panic defense, according to the editors of a Harvard Law Review sexual orientation law primer, "is premised on the theory that a person with latent homosexual tendencies will have an extreme and uncontrollably violent reaction when confronted with a homosexual proposition."
These defenses have been asserted in numerous cases to acquit or, more typically, to reduce the sentences of gay bashers. The Harvard editors stress that "[e]ven when defendants ... do not raise homosexual panic as a defense, the admission of evidence of a victim's homosexuality often results in undue lenience towards such defendants." It's as if gay men "ask for it" by their behavior or their mere existence -- just as rape victims were stigmatized in the not-so-distant past.
Last week in Oahu, Hawaii, the day before Matthew Shepard died, the island's gay and lesbian community held a candlelight vigil in memory of Kenneth Brewer, a gay man who was beaten to death last year. Stephen Bright, 30, met the former hotel executive in a gay bar and went home with him. Bright beat Brewer to death when, he maintained, Brewer came at him without his clothes on and made a sexual advance. A jury found Bright guilty of third-degree assault in the killing and sentenced him to one year in prison. He will be released next month. Gay rights groups have called for a "trial autopsy" of the case to see why a killing would yield such a slap on the wrist.
The extent to which homosexual advance or panic defenses are relied upon is not easy to gauge. The reported cases, involving written decisions handed down on appeal, are relatively few. Yet as the law review editors noted, even where such defenses are not explicitly asserted, gay victims' sexuality often plays an unacknowledged role in the disposition of criminal cases.
In Roanoke, Va., Christopher Wilson's parents now regret going along with the prosecutor's offer of a plea bargain in their son's 1996 murder. To avoid a trial and a public inquiry into their gay son's sexual life, they acquiesced to prosecutors' acceptance of a plea of no contest to first degree murder and robbery. The killer, Christopher Saul, was sentenced last year to 42 years in prison for beating the 25-year-old Wilson to death with a crescent wrench and a car jack.
More than 50 pieces of evidence had been gathered in preparing for Saul's murder trial. Mary and Jerry Wilson had hoped for a life sentence or the death penalty for their son's killer. "I don't think we let him down; I think the justice system did," Mary Wilson told the Roanoke Times & World News. "We were told [defense lawyers] would use everything they could to drag his name through the mud." The lead investigator on the case told the paper, "Unfortunately, even though we're in 1997, there was a fear that based on his lifestyle, a jury would believe he got what he deserved."
Nor is it only Virginia jurors who cannot be trusted to set aside their anti-gay biases. Judges, too, have been taken to task for attitudes that deny the humanity of gay victims of violent crimes.
In 1988, at a sentencing hearing for a defendant convicted of killing two gay men, Texas Judge Jack Hampton handed down a 30-year sentence rather than the life sentence requested by the prosecutor. His rationale? "I don't much care for queers cruising the streets picking up teenage boys ...[I] put prostitutes and gays at about the same level ... and I'd be hard put to give somebody life for killing a prostitute."
In 1987, Daniel Wan was beaten up outside of a bar in Broward County, Fla., by assailants who called him faggot, repeatedly kicking him and throwing him up against a moving car. He died from his injuries two days later. At a pre-trial hearing, Circuit Judge Daniel Futch jokingly asked the prosecuting attorney, "That's a crime now, to beat up a homosexual?" The prosecutor responded, "Yes, sir. And it's a crime to kill them." To that, the judge quipped, "Times really have changed." Although the judge apologized and maintained he was kidding, he was removed from the case.
Times may be changing; such outrageous expressions of judicial bias no longer go unchallenged. Moreover, hate crimes are now reported and tallied pursuant to a patchwork of state laws. Forty states have such laws (Wyoming is not among them); 11 mention sexual orientation.
As gay activists, criminologists and police officials look for ways to prevent and prosecute gay-bashing, psychologists and sociologists seek to understand its origins.
Although the slaying of Matthew Shepard may have been unique in its brutality, it fit the common profile of a gay bashing -- young men singling out a gay victim for sport. There are even slang terms for the practice that make it sound like something worthy of ESPN coverage: "quail hunting" or "fag rolling."
Although some commentators have criticized the "homosexual panic" defense as more of a cultural expression than a proper psychological explanation, some researchers believe that in addition to thrill seeking or ideological opposition to homosexuality, gay bashers may be motivated by a fear of their own suppressed homosexual urges.
Henry Adams and his colleagues in the psychology department at the University of Georgia devised a way to put this hypothesis to the test. For a study published in the "Journal of Abnormal Psychology" they recruited a group of 64 men between the ages of 18 and 31, dividing them into groups of homophobic and nonhomophobic subjects on the basis of their scores on an "Index of Homophobia" test. The subjects were then shown explicit erotic videos depicting straight, gay male and lesbian sex.
While watching the videos, the subjects were hooked up to a plethysmograph, a device that measures changes in penile circumference. The homophobic subjects' stirring penises sent the needle on the plethysmograph twitching -- 80 percent of the homophobic participants showed "moderate to definite tumescence" while viewing the male homosexual video, compared to a third of the nonhomophobic men. Although the plethysmograph doesn't lie, the homophobic subjects did, denying to the researchers (and perhaps themselves) that they were aroused.
It would be armchair psychobabble to assume that Aaron McKinney and Russell Henderson were dealing with their deep-seated homosexual urges in singling out Matthew Shepard. However, the search for motive and the urge to place the Shepard case in the context of the broader social disopprobrium of homosexuality remains. There will be plenty of blame to go around. Back when the nation's attention was riveted on the "Jenny Jones" murder -- when Jonathan Schmitz fired a shotgun point blank into Scott Amedure's chest because Amedure had revealed on the Jones show that he had a crush on Schmitz -- pundits blathered on about the sorry state of talk TV, mostly missing the point.
Erik Piepenburg, writing in the Chicago Tribune, got it: "By calling the show a 'humiliating ambush,' our society and the news media reinforce the notion that an innocuous revelation of a same-sex crush is such an embarrassment that defense of one's masculinity and/or heterosexuality -- even through violence -- is acceptable, even necessary. But would a show on interracial crushes have been referred to as 'humiliating?' If a white man had killed a secret African-American female admirer, would a jury have had sympathy for the killer's racial insecurities?"
As long as claims of "humiliation" and "panic" can evoke sympathy and lesser sentences for gay-bashers, more such violence can be expected.