Gay-bashing victims overcome prejudice to win civil settlements.

When Matthew Shepard flirted with a young heterosexual man in a Wyoming bar last October, he didn't know the come-on would bring on a beating so severe it would cause his death.

Shepard was pistol-whipped, tied to a fence post like a scarecrow, and beaten again before his attackers abandoned him on an isolated road in near-freezing temperatures. He died five days after the beating.

For a brief time, Shepard's murder focused the national media on "gay bashing." Gay rights advocates once again called for swift passage of improved federal and state hate crime statutes that would protect gays and lesbians against bias-motivated crime.

On a severity scale, Shepard's murder is the extreme example of bias crime against a homosexual. Other antigay crimes include vandalizing property with antigay graffiti, using intimidating or offensive language, and physically assaulting a gay person, with or without weapons. Many of these physical assaults maim victims.

Since 1990, the FBI has been required to report bias crime statistics submitted voluntarily by the country's law enforcement agencies. In 1997, there were 8,049 hate crimes reported; 1,102 were incidents motivated by sexual orientation. The National Anti-Violence Project--a coalition of organizations serving gay, bisexual, transgender, and HIV-positive people--has 14 tracking centers in major U.S. cities. The project reported 2,445 incidents in 1997, a 2 percent increase over 1996.

Like other crimes, assaults on homosexuals are adjudicated in the criminal courts. But have victims sought redress in civil courts? Leading anti-bias crime and gay rights groups recalled a few successful civil court cases.

In 1995, a criminal court convicted 10 young men in the brutal stabbing and beating death of a Houston gay man, Paul Broussard.

Broussard was viciously attacked at about 3 a.m. on July 4, 1991, when he left a gay bar in the Montrose section of Houston. Ten teenage boys, in their cars cruising the neighborhood, asked him where the gay bar was. Broussard pointed the boys in the bar's direction and clued them in to his sexual orientation. They beat him with a nail-studded board and stabbed him with a knife.

The boy who wielded the knife, Jon Christopher Buice of Woodlands, Texas, was 21 years old when he received a 45-year jail sentence. Buice's codefendants received sentences ranging from probation to 20 years in prison, based on their level of participation in the beating.

Broussard's mother, Nancy Rodriguez, felt the criminal justice system had properly sentenced the men, but she wanted the message against gay bashing to be clear. So she filed a civil lawsuit that resulted in out-of-court settlements. Her suit not only named her son's attackers but their parents and the parents' homeowner insurance companies. Her lawsuit claimed the parents were negligent because they failed either to be aware or to become aware of their sons' propensity for violence.

In May 1995, a jury found Brian Spake --one of the attackers--and Spake's mother grossly negligent, awarding damages for every hour Broussard stayed alive in a coma after he was beaten and stabbed.

The jurors were deadlocked on another defendant who had watched while Broussard was being beaten. Three of the boys' families settled out of court before a civil jury handed down its verdict.

Spake's mother, Mary Anne Spencer, appealed. The state appeals court held that she was not liable because she couldn't have known that her son would commit a murder. (Rodriguez v. Spencer, 902 S.W.2d 37 (Tex. Ct. App. 1995).) Evidence showed that Spencer had instructed her son not to associate with Buice and that she was unaware Spake was with him.

But Rodriguez vowed to go to a higher court. Eventually, the insurance companies settled in exchange for the plaintiff's promise that she would not pursue the suit further, said Clinard Hanby, a Woodlands, Texas, attorney. He argued the insurance portion of the case.

Brian Levin, a bias crime expert at Richard Stockton College of New Jersey in Pomona, said since the typical attackers of homosexuals are young male teenagers without any assets, plaintiff attorneys need to check their states' parental liability statutes when pursuing claims under homeowner insurance policies.

Hate crime experts agree that plaintiffs should usually wait for a criminal jury decision before proceeding to civil court.

"It is extremely useful to get a criminal conviction," said Richard Cohen of the Southern Poverty Law Center in Montgomery, Alabama. But he noted that states have various ways of handling criminal convictions in a civil trial. For instance, in some states, the criminal conviction would preclude a defendant from contesting liability and would limit the trial to damages.

An acquittal, Cohen said, "never precludes a civil plaintiff from going forward."

Cohen's recommendation is tempered by his own experience of representing Crae Pridgen in a 1993 civil damages lawsuit. Pridgen, a gay man, was allegedly beaten by three U.S. Marines in North Carolina.

Pridgen sustained a bruised rib and chipped teeth in the altercation after President Bill Clinton announced his initiative to allow gays in the military. The announcement motivated the Marines to beat Pridgen at a gay bar, Pridgen's suit claimed.

During discovery, the Marines admitted that they disliked Clinton's initiative and that they typically referred to gays in derogatory terms, but they denied using homophobic slurs during the incident. The police reports tended to back up Pridgen's account of what the Marines said during the altercation, Cohen said.

After a brief trial in Wilmington, North Carolina, the Marines were acquitted. Cohen said the trial was so "poisoned" with antigay bias "it made proceeding with the civil case almost unthinkable."

Cohen was riding an exercise bicycle at a gym in Wilmington when CNN broadcast the decision. As he watched the newscast, he could hear fellow gym-goers making disparaging homophobic remarks.

That experience convinced Cohen he would not get a favorable verdict for Pridgen in a civil trial. "How could I get a jury to be sympathetic?" he asked. Cohen recommended that Pridgen accept an out-of-court settlement. The negotiations resulted in Pridgen receiving a token settlement, Cohen said.

Cohen said Pridgen's case should not be viewed as typical. "These cases are winnable, but because of all the press, the hysteria over gays in the military, and my client versus U.S. Marines--them fighting for their country--this case was out of the ordinary," he said.

These cases are hard to try because of the tremendous prejudice, Cohen said, but a strong, factual case mitigates the homophobia. If the case has ambiguities, then prejudice can operate, he said.

Equal protection upheld

In a case similar to Pridgen's, the New York affiliate of the American Civil Liberties Union (ACLU) went to court against three agents of the U.S. Drug Enforcement Administration (DEA) who had beaten and falsely arrested two gay men.

The suit stemmed from a November 16, 1988, incident that started after Jeffrey Grubb bumped his motorcycle into an unmarked DEA car parked on the sidewalk. The tap caused one agent to jump out of the car and begin hitting Grubb. The second plaintiff, Marc Anderson, tried to help Grubb, and two other plainclothes agents jumped out of the car to grab Anderson. Agents continued to kick Grubb as he was on the ground. During the scuffle, the agents yelled homophobic epithets. The agents told New York City police officers to arrest the men, who were held for a few hours.

The case was successful in two areas. A U.S. district judge denied a defense motion to dismiss the plaintiffs' claims that defendants violated the plaintiffs' equal protection rights by singling them out for abuse because they were gay. U.S. Department of Justice lawyers, representing the defendants, argued that because the constitutional status of homosexuality was in flux, the plaintiffs could not challenge the defendants' actions on equal protection grounds.

But U.S. District Judge Richard Owen rejected that argument and in his opinion wrote, "Regardless of the level of scrutiny afforded to the status of homosexuality under the Equal Protection Clause," the federal agents should have known that harassment, unprovoked assault, and unjustified arrest based on bias are constitutional rights violations. (799 F. Supp. 1490, 1491 (S.D.N.Y. 1992).)

At trial, the plaintiffs made three claims: They were falsely arrested, the DEA agents used excessive and unreasonable force, and the arrest and unreasonable force occurred because of the plaintiffs' sexual orientation.

New York City jurors found for the plaintiffs on the first two claims. But on the discrimination charge, the jury found in favor of the defendants. Damages were awarded to the plaintiffs. (Anderson v. Branen, No. 90 Civ. 7014 (S.D.N.Y. Apr. 21, 1995).)

The verdict does not mean the plaintiffs were not subjected to antigay bias, said Joseph Tringali, the plaintiffs' pro bono New York City lawyer. It means only that the jury did not find the defendants acted solely out of homophobia.

Profile of an attack

Typically, gay bashing occurs in a group setting, bias expert Levin said. It usually involves a group of male youths who have been drinking and see gay bashing as a "social sporting" event.

"They actually feel they are doing the bidding of the community. Homophobia is still socially acceptable," Levin said.

The attackers' insecurities may also motivate the violence. By beating a homosexual or someone they perceive as a homosexual, they are trying to deal with their sexual insecurity, Levin said. Peer pressure overcomes the group's individuals, and since each member plays a part, the responsibility is spread throughout the group.

Attackers try to physically remove the victim's sexual orientation. "It is an aggressive onslaught with your hands to physically beat out what you perceive in this person you don't like," said Carle Locke of the New York City Gay and Lesbian Anti-Violence Project.

Antigay assaults often involve "overkill," a term describing the numerous stab wounds, lacerations, and bruises that typically result from a severe beating in these types of crimes, Locke said.

According to Levin, lawyers representing gay-bashing victims should check the civil statutes regarding evidence, attorney fees, and restitution. In many instances, antigay incidents are serial harassment and escalate in severity. Levin suggested asking for court orders to protect the client from ongoing harassment.

He also suggested plaintiff attorneys contact local gay advocates and network with other lawyers who have handled similar cases to learn about the defense tactics.

During a trial, Levin said, defense attorneys will usually argue their client was minimally involved since most gay-bashing incidents occur in a group. Defense attorneys also use a defendant's youthful appearance to make him or her look innocent, and they try to blame the victim.

Justice for Shepard?

Regardless of whether Wyoming has parental liability statutes, they would not apply in the Shepard case since the accused killers and their girlfriends are legal adults. Criminally, prosecutors are seeking the death penalty against Russell Henderson and Aaron McKinney. They have been charged with first-degree murder, kidnapping, and aggravated robbery in Shepard's death. Henderson's trial is set for March. McKinney goes to trial in August.

The girlfriends, ages 20 and 19, are charged with being accessories after the fact to first-degree murder. The charge's maximum penalty, is three years in jail and a $3,000 fine.

Although the accused face stiff criminal penalties, their alleged method of killing Shepard reverberates through a gay community fighting for better protection and justice from the legal system.