"Gay Panic" Is No Excuse For Killer In Matthew Shepard Case

29 October 1999

By Stentor Danielson

The gall of our nation's lawyers was exhibited in revolting detail this week when Aaron McKinney's lawyers gave their opening statements. McKinney is charged with the brutal beating death of Matthew Shepard, a gay Wyoming college student.

Seeing no way to argue that McKinney wasn't involved in the beating, the defense in the trial of Aaron McKinney has chosen to add insult to injury by using the "gay panic" defense. If successful, this strategy would reduce the charge from murder to manslaughter. District Judge Barton Voigt was unsure about whether to allow the defense's strategy. And well he should be. This defense has no place in our legal system.

The gay panic defense states that when a homosexual makes an advance on someone with repressed homosexual tendencies or experiences, it triggers a violent, uncontrollable reaction.

The defense plans to argue that after Shepard tried to hit on McKinney, he had been snapped because McKinney was abused as a child and forced into homosexual acts by neighborhood bullies. The influence of alcohol and drugs, say defense lawyers, contributed to the loss of control that led McKinney to beat Shepard 20 times with the butt of a pistol.

Though the gay panic defense has been allowed several times in the past, it has no real basis in Wyoming law. The closest thing is the "battered woman" defense, allowing a woman to kill her husband in self-defense. But, the premise behind this defense is absent in McKinney's case.

The "battered woman" defense is based on the premise that an abused wife may justifiably feel that she has no other recourse than to strike back at her husband. But, that premise does not hold in cases of gay panic. Shepard and McKinney met at a bar and agreed to carpool home. At any time, if McKinney found Shepard's advances intolerable, he was free to walk away. He had no need to ever see Shepard again in his life. So from a purely technical standpoint, McKinney's defense is untenable.

There are reasons why the gay panic defense is not, and should not be, allowed. Most obvious is the matter of personal responsibility. Citizens should be able to expect that anyone not committed to a mental institution is in reasonable control of his or her actions. The law should enforce this expectation.

On the subject of alcohol, it would be useful to note the testimony of witnesses at the bar where Shepard and McKinney met. According to the witnesses, neither man acted particularly intoxicated. This clearly contradicts the defense's statement that the alcohol contributed to McKinney's loss of control. If McKinney was in control enough to walk soberly out of the bar, he was in control enough to be responsible for his actions toward Shepard. Without the premise of intoxication, the burden of expected belief placed on the gay panic principle becomes even more unbearable.

McKinney should not be relieved of any responsibility for his actions. To say that Shepard invited his own death by being gay is ludicrous. Shepard, as well as any other homo- or heterosexual man or woman, should be able to expect that their advances will be met with, at the worst, simple rejection. Nobody should have to worry that some otherwise fairly harmless and easily refused action might trigger latent memories and lead to death. But, by allowing the gay panic defense, Voigt would be condoning the use of a lack of control as an excuse.

I suspect that nobody would ever try to use the "straight panic" defense. This is because heterosexuality's legitimacy is accepted by everyone. The contention that Shepard's homosexuality provoked McKinney simply reveals McKinney's narrowmindedness.

It makes no sense to call narrowmindedness an extenuating circumstance. But that is what the gay panic defense seeks to do. It suggests that the defendant can't be expected to handle an expression of a peer's homosexuality. Despite the obvious inequalities existing today between homosexuality and heterosexuality, it is dangerous to endorse the double standard by allowing the gay panic defense.

Maintaining self-control is a responsibility that we all share. If a belief -- such as homophobia -- or an act -- such as drinking -- is going to cause us to harm others, that is our problem, not theirs.

Additionally, we only know of Shepard's advance from McKinney. It is very possible that McKinney's homophobia read into an otherwise innocuous action by Shepard. Or perhaps it was a fabrication by McKinney to rationalize his robbery of Shepard. It is hard to take McKinney's word at face value. Reducing the charge from murder to manslaughter should rest on something a bit more convincing than the killer's testimony.

It strikes me as odd, if the gay panic defense is true, that McKinney would use the butt of his gun. The barrel would be much faster and more efficient at repelling unwanted attention. Bang, he's dead. If McKinnney were truly in a panic and not in control of himself, one would think that he would execute the most obvious lethal action of a man with a pistol -- shooting.

If gay panic is the best the defense can do for extenuating circumstances, McKinney's guilt is virtually proven. A combination of homophobia and desire to rob Shepard is the only logical alternate motive. That deserves a murder conviction.

The focus of this case should remain on what McKinney did, not why he did it. Nobody is denying that McKinney beat Shepard 20 times with the butt of his pistol. I can't imagine that any amount of unwanted sexual advances could cause a person to deserve even a fraction of that treatment.

McKinney committed a vile act that he could easily have avoided, and he should be punished accordingly. Shepard's sex life, however repellent to McKinney, should not be a factor. The blood that flowed out of Shepard's head is of far more consequence than the desires that may have been circulating within it.

Based on facts the defense does not deny, it seems clear that Shepard's murder was deliberate and unneccessarily gruesome. Any attempt to trace McKinney's actions to provocation by Shepard is an attempt to blame the victim. Unfortunately for the defense's logic, Shepard in no way deserved to die. Hopefully Judge Voigt recognizes this.

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