Gay Panic, Gay Victims, and the Case for Gay Shield Laws

Authors

J. Kelly Strader, Southwestern Law School
Molly Selvin, Stanford Law School
Lindsey Hay, Southwestern Law School

Abstract

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases of the gay panic defense while also examining broader issues concerning violence against LGBTQ victims. Our research reveals one overriding theme common to violent crimes against such victims: the murder case against the killer, Brandon McInerney, evolved into a prosecution of the victim, Larry King. Many jurors blamed King, and the school officials who "allowed" King to defy sex and gender norms, for the murder; one juror went so far as to characterize King's behavior as "deviant." We believe that the jurors reached this conclusion largely because the defense offered evidence, including evidence of King's feminine mannerisms and attire, that had a strong tendency to inflame the jurors' prejudices. For example, the defense introduced a photograph of King holding a green prom dress, even though the photograph was of little or no probative value.

To prevent future gay panic cases from evolving into trials of the victims, we propose a "gay shield" rule of evidence: in cases where the defendant asserts a gay panic defense, the law should limit the trial judge's ability to admit evidence designed to incite prejudicial responses among jurors. Building upon the law and policy underlying rape shield statutes, gay shield laws would seek to protect crime victims from being revictimized at trial.

Disciplines

Communications Law | Criminal Law | Criminal Procedure | Evidence | Law | Sexuality and the Law

Recommended Citation

J. K. Strader, Molly Selvin & Lindsey Hay, Gay Panic, Gay Victims, and the Case for Gay Shield Laws, 36 Cardozo L. Rev. 1473 (2015).
Available at: https://larc.cardozo.yu.edu/clr/vol36/iss4/6