Schmitz emerged from backstage and saw two people he knew, Donna Riley and Scott Amedure. “Did you think Donna has a crush on you?” grinned Jones. “Well guess what, it’s Scott that has the crush on you!”
The audience roared. Schmitz turned to Amedure. “You lied to me!” he said, giving an embarrassed laugh. He was played a recording of Amedure discussing sexual fantasies moments earlier. “I’m definitely heterosexual,” Schmitz said.
The edition was never aired. Three days after it was taped in 1995, Schmitz found a love note from Amedure on his door, bought a shotgun, drove to Amedure’s house in Michigan and fired twice into his chest, killing him.
A jury found Schmitz guilty not of first-degree murder, requiring premeditation, but of second-degree murder. He was released from prison last year.
Schmitz’s lawyers argued that he was mentally ill and became emotionally unstable after feeling humiliated. For some gay rights advocates the case remains an example of a homophobic legal tactic that persists today, despite efforts to ban it.
This so-called “gay panic defence” returned to the headlines in April when a 69-year-old man in Austin, Texas received a seemingly light sentence of six months in jail and 10 years probation for fatally stabbing a 32-year-old neighbour who allegedly came on to him.
James Miller argued that he simply acted in self-defence when he killed Daniel Spencer. Miller’s attorney denied to NBC News that revulsion at a sexual approach from a man was a factor in the killing or the trial strategy.
It is impossible to know how often “gay panic” has been employed as a defence tactic, or how frequently juries have opted for lesser sentences as a result of conscious or unconscious biases in cases where gay or transgender people are attacked. A 2016 analysis by the Williams Institute at the UCLA School of Law found that the defences have appeared in court opinions in about half of US states.
The first widely known American use came in the 60s, when the American Psychiatric Association still defined homosexuality as a mental disorder. A Californian man named Joseph Rodriguez with a tree branch in what his attorney called “an acute homosexual panic brought on him by the fear that the victim was molesting him sexually”.
Other cases have drawn scrutiny, such as the death in 1998 of Matthew Shepard and the 2013 murder of Marco McMillian, a gay mayoral candidate in Clarksdale, Mississippi. His killer, Lawrence Reed, admitted to strangling the victim, dumping the body near a levee and trying to set it on fire, but argued that he acted in self-defence after McMillian tried to rape him. A jury sentenced Reed to life without parole. In 2009, a Chicago jury acquitted a man who stabbed a neighbour 61 times, claiming he acted in self-defence because he was about to be sexually assaulted.
“We know it works,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association. The strategy, she said, exploits “society’s deeply held belief that individuals who are attacked, murdered, somehow brought it on themselves for being gay and making a pass or whatever”.
It is invoked, she said, “to take the focus away from the act, whether it be an assault or indeed a murder [by] the accused, to the status of the victim, and so a defence attorney will talk about the status of a victim as either gay or trans in order to lessen the outrage of the crime”.
Kemnitz is concerned that the legality of the tactic leaves LGBT people vulnerable in criminal and civil proceedings at a time when the Trump administration has rolled back protections for transgender people; federal statistics indicate hate crimes are on the rise and some state politicians continue to promote harmful attitudes.
‘We’re in that slow drip phase’
Texas has not removed the offence of “homosexual conduct” from its penal code, despite it being rendered unconstitutional when the US supreme court struck down the state’s sodomy law in 2003. Last year, the Republican-dominated legislature came close to passing a law restricting the access of transgender people to restrooms and changing facilities, while in 2015 an equal-rights ordinance in Houston was scrapped by voters after opponents waged a campaign depicting transgender people as potential molesters.
But other states have addressed the issue. California became the first state to outlaw the gay panic defence in 2014 and a prohibition in Illinois went into effect at the start of this year. Bans have been advocated or formally proposed in states including Rhode Island, Massachusetts, Georgia, Washington, New Jersey and New York.
“I think that there’s certainly an appetite to think about this and to work on legislation to ban LGBT panic defence,” said Anthony Michael Kreis, a professor at Chicago-Kent College of Law who was involved in drafting the Illinois bill.
“I tell people that much like same-sex marriage legislation, in 2009 we had a handful of states begin legislating on same-sex marriage, and then New York came and it was kind of a slow drip, and then the floodgates suddenly opened,” Kreis said. “I think we’re in that slow drip phase where we’ll see a handful of states in the next couple of years jump on board and I think that’ll really open a path for many states to follow suit.”
In February, Andrew Cuomo, the Democratic governor of New York, announced a proposal citing the death of Islan Nettles, a transgender woman who was beaten to death by a man who had flirted with her. The attacker pleaded guilty to manslaughter and was sentenced to 12 years in prison, which Nettles’ family felt was too lenient.
Cuomo’s plan was rejected by state lawmakers because it would have placed limits on defence strategies available to attorneys, one assemblyman told the New York Law Journal. However, the American Bar Association passed a resolution against the defences in 2013.
“As a law professor I’m incredibly aware of the need to allow criminal defendants to have every tool in their toolbox to use in a trial situation,” Kreis said. “When life and limb hangs in the balance we don’t want to restrict their ability to defend themselves.
“On the other hand, to lodge a defence that turns solely on the victim’s sexual orientation or gender identity is really just using the bias of jurors and perhaps judges to their advantage and it perpetuates anti-LGBT stigma. And that to me runs contrary to our constitutional values as a society, it runs contrary to our existing hate crimes statute and it’s something that I think in 2018 we shouldn’t permit any more.”
