By Kenneth J. Bartschi, partner
Sometimes a case is attention-grabbing for reasons that have little or nothing to do with the issues on appeal. A recent example is State v. O’Brien-Veader, 318 Conn. 514 (2015), in which the defendant unsuccessfully asserted a gay-panic defense in his murder trial. A gay-panic defense refers to “defense strategies that rely on the notion that a criminal defendant should be excused or justified if his violent actions were in response to a (homo)sexual advance.” Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471, 475 (2008) (footnote omitted). In O’Brien-Veader, the defendant raised the defense of extreme emotional disturbance pursuant to Conn. Gen. Stat. § 53a-54(a) (discussed below) to explain why he brutally murdered the victim, a gay man who made an unwanted sexual advance. 318 Conn. at 522.
The defendant and the victim lived in an abandoned factory under squalid conditions, sharing a mattress and living space. Id. at 518. He claimed the victim told him that the victim had ejaculated on the defendant while he slept. Id. (It does not appear that the defendant was aware that this act occurred, if it did at all, until the victim told him.) The defendant became angry with the victim, left the factory, and checked into a hotel room with his girlfriend. Id. He told his girlfriend about his discomfort with the victim and that he intended to kill him. Id. He then returned to the factory and what began as a verbal dispute turned into a violent physical altercation in which the defendant ultimately stabbed the victim to death. Id. at 518-19.
The defendant was charged with murder, kidnapping in the second degree, and felony murder. Id. at 521. He conceded killing the victim, but raised the defense of extreme emotional disturbance, which if successful would reduce a murder conviction to manslaughter. Id. at 522. This defense is set forth in Conn. Gen. Stat. § 53a-54(a), which provides, in pertinent part:
[I]t shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .
Here, the defendant claimed that because of his “severe homophobia, his actions at the time of the attack constituted an emotional ‘reaction,’ albeit one without a ‘formal psychiatric diagnosis . . . .’ ” 318 Conn. at 522. His expert claimed that the defendant had been sexually assaulted as a child, which contributed to his emotional disturbance. Id. n.4.
The jury convicted the defendant on all counts, rejecting his affirmative defense. Id. It is not clear whether the jury concluded that the defendant’s reaction was an unreasonable response to an inappropriate act or that it rejected his claim that he was homophobic. As to the latter, there was evidence that the defendant knew other gay men and did not have problem with them and that he had made out with a drag queen without reacting violently. Id. at 549, 562 n.31. I would like to think that the jury rejected the defense as an unreasonable response to an unwanted sexual advance, but only the jury knows its reasons.
The issues on appeal concerned prosecutorial impropriety, evidentiary claims, and sufficiency of the evidence as to the kidnapping charge, all of which the court rejected. Id. at 517-18. What was not at issue was the propriety of the gay-panic defense in the first place.
The gay-panic defense is troubling because it perpetuates the stereotype of gay men as deviants and predators and plays to anti-gay bias by suggesting that violence is an appropriate response when a gay man makes an unwanted pass at another man. While societal attitudes towards LGBT have dramatically improved in recent years, it would be naïve to think there is no anti-gay bias left, even in progressive Connecticut. While the defense did not succeed in O’Brien-Veader, it might with the right jury in the next case.
Further, the gay-panic defense is also inconsistent with the spirit, if not the letter, of Connecticut’s Hate Crimes Law. See Conn. Gen. Stat. §§ 53a-40, 53a-181i through 53a-181k. The Hate Crimes Law was initially enacted in 1990 in response to the murder of a gay man, Richard Reihl, by two teenagers in 1988. See. P.A. 90-137. According to newspaper accounts at the time, one of the defendants sought a shorter sentence because he hated gay people due to a childhood sexual assault. Youth Draws Prison Time in ‘Gay Bashing’, L.A. Times, Dec. 6, 1989, available at http://articles.latimes.com/1989-12-06/news/mn-99_1_prison-gay-bashing. In an interview, defendant Marcos Perez claimed he became angry when Reihl wanted to have sex with him. Youth Convicted of Gay Bashing Blames Victim, The Hour (June 16, 1990), available at https://news.google.com/newspapers?nid=1916&dat=19900615&id=VxNJAAAAIBAJ&sjid=vQUNAAAAIBAJ&pg=3576,2454274&hl=en. While it is not clear whether he asserted a gay-panic defense to the murder charge, it appears that Perez did try to use the defense to mitigate his sentence.
The Hate Crimes Law prohibits intimidation on the basis of various classifications, including sexual orientation and gender identity or expression. The prohibited conduct includes causing serious injury but does not address homicide. See § 53-181j. Thus, strictly speaking, the hate crimes law is not inconsistent with the extreme emotional disturbance defense in § 53a-54(a) as a matter of linguistics. Still, it seems odd as a matter of policy that a criminal defendant could raise a gay-panic defense to a murder charge when the reason for our hate crimes law is a murder where at least one of the defendants claimed the victim made a pass at him.
As to what, if anything, can be done, the legislature could preclude the gay-panic and trans-panic defenses for non-forcible advances. The California legislature did so last year. See Cal. Penal Code § 192(f)(1). Alternately, the state could object to the use of the defense, and if the trial court agrees to bar it, the propriety of the defense can be raised on appeal if the defendant is convicted. Or maybe, we can continue to trust juries to exercise reason, as apparently occurred in O’Brien-Veader. See Lee, supra, at 521-557 (arguing that the gay-panic defense should not be categorically barred and that juries are the most competent institution to evaluate the defense). If juries continue to reject such defenses, maybe they will die quietly without action by the courts or the legislature.