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"They asked for it": murderers of gay and transgender people across the country are still blaming the victims, claiming sexual advances can cause homicidal rage. Now prosecutors are joining together to get rid of the "gay panic" defense once and for all.

Nineteen-year-old Eagle Scout Gary Hirte admitted he murdered Glenn Kopitske, a 37-year-old gay Wisconsin man. But Hirte's attorney told a jury in February that his client should not be held responsible for his actions: He did it only because he was crazy with rage and shame after the two had sex in Kopitske's rural Winnebago County home in the summer of 2003.

Of course, the jury also heard how Hirte had returned to Kopitske's home hours after the sexual encounter with a shotgun and a hunting knife, both of which he used in the killing. They heard how Hirte had bragged to friends about his deed, showing at least one of them the bloody knife and the victim's car keys. They heard how he'd told a pal that he murdered Kopitske just to see what it was like to kill someone.

The jury rejected Hirte's claim of temporary insanity and recommended he be sentenced to life in prison.

The "gay panic" defense fails more often than it succeeds, legal experts say, but it's a defense strategy that continues to emerge in cases of violence against gay men and transgender women in jurisdictions across the nation. Now law-enforcement officials are banding together to fight back. In February more than 100 prosecutors, lawyers, and police officers met in Atlanta at a symposium titled "Defeating the Gay-Panic Defense," billed as the nation's first such gathering.

The strategy session was the brainchild of Atlanta district attorney Paul Howard. Two years ago Howard had watched as a Georgia jury acquitted a man who had confessed to beating to death a gay lawyer who the defendant claimed had performed oral sex on him at gunpoint. The victim had worked for Howard, who says the experience of seeing his employee's killer walk out of the courtroom a free man was "galvanizing. There were a lot of people in my office who were upset by this, and I told them, 'Let's do something constructive.'"

Long a mainstay of lawyers defending the killers of gay men, the gay panic defense hit the national news in 1999. "What really brought this to the forefront was the Matthew Shepard case," Howard says. During the trial of Aaron McKinney, who admitted to fatally beating the 21-year-old gay college student near Laramie, Wyo., in October 1998, defense attorneys told the judge they would argue that McKinney killed Shepard in a blind fury after a sexual advance by Shepard had brought out demons from the killer's troubled sexual past. But district judge Barton Voigt "called it a gay panic defense and said it couldn't be brought in," Howard recounts. The judge likened the defense strategy to temporary insanity or a diminished-capacity defense, both of which are prohibited by Wyoming law.

Still, McKinney's lawyer was allowed to raise the issue during his opening statement, and the tactic may have helped win McKinney a conviction for second-degree murder instead of first-degree premeditated murder. (McKinney was also convicted of first-degree felony murder, which unlike first-degree premeditated murder does not require proof of intent to kill, just to commit a related felony, in this case robbery and kidnapping.)

Since that trial, legal experts say, judges across the nation have become more reluctant to allow the gay panic defense, often ruling that testimony about the victim's sexual orientation is inadmissible. Judges are particularly skeptical when attorneys complain during an appeal that the gay panic defense should have been allowed at the original trial, says New York Law School professor Arthur Leonard, who has tracked gay issues in the law for more than 20 years. "Appellate judges tend to be strongly averse to upsetting a conviction based on [gay panic]," he says. Judges typically rule "that murder is a disproportionate response to an unwelcome sexual solicitation or invitation."

But what seems a disproportionate response to some may still strike juries as partial justification for the brutal murder of gay men. In Kentucky, 23-year-old Josh Cottrell admitted beating to death Guinn "Richie" Phillips, a 36-year-old gay Rineyville man, and then stuffing his body into a suitcase. Taking the stand during his trial, Cottrell argued that he killed Phillips in self-defense after the older man attempted to force him to perform oral sex in a motel room. Beating Phillips unconscious, he claimed, was the only way to avoid unwanted gay sex. What else could he do?

Although they recommended a sentence of 30 years, the jury declined to find Cottrell guilty of murder. They convicted him instead of second-degree manslaughter in a case that could have brought the death penalty. On March 1 a judge sentenced Cottrell, a previously convicted felon, to 20 years in prison. He could be eligible for parole in about two years.

Why did the jury not return a murder conviction? "I think they were looking at my brother being a homosexual when they made their decision to pick the lesser charge," Phillips's brother, Greg, told a local newspaper.

The gay panic defense "reinforces, and perpetuates prejudice and violence against gays" in a wide range of crimes, legislative lawyer Kara Suffredini wrote in a 2001 article for the Boston College Law Review. Arguing that the gay panic defense is loosely defined and used inconsistently, she called for new evidentiary rules to limit its use or for laws banning it entirely.

Tom Charron, president of the National District Attorneys Association and one of the participants in the Atlanta symposium, says the gay panic defense should not be allowed: "In our system of justice the defense has the right to put almost whatever they want in front of the jury. It's used to try to diminish the defendant's culpability. But I don't know of a single prosecutor who feels this is a legitimate defense."

But even with prosecutors' opposition and judges' increasing reluctance to allow it, the gay panic defense is still being introduced in cases throughout the country, says Georgia prosecutor Howard. As in the McKinney trial, lawyers can often make the argument in opening statements. And in some states, including Georgia, state law requires judges to allow even otherwise inadmissible evidence into a trial if it is the only theory the defendant has to offer.

Howard says traditional self-defense claims can sometimes be hard to distinguish from gay panic cases but that in both instances defense attorneys try to inflame jurors' prejudices to make their clients appear less culpable. And it can still work, as appeared to be the case in the trial of Jason Cazares, Jose Merel, and Michael Magidson, the three California men who admitted to killing their transgender friend Gwen Araujo. Just 17, Araujo was beaten and strangled to death in 2002 at a party after it was discovered she was biologically male. At their trial the trio claimed that they had had sex with Araujo and that her deception had prompted the rage that resulted in her death. Jurors were unable to agree on a verdict for any of the defendants, and the judge was forced to declare a mistrial in 2004. The men are expected to be retried, although Cazares has been free on $1 million bail since August.

Partly in response to the Araujo mistrial, California assemblywoman Sally Lieber this year introduced a bill to outlaw the gay panic defense in state criminal cases, changing the definition of "voluntary manslaughter" to prohibit defendants from arguing that they were provoked to kill by the victim's disability, gender, nationality, race, ethnicity, religion, or sexual orientation.

"We should not allow criminal defendants to blame their victims," Lieber said in a statement. "We prohibit discrimination based on race, religion, gender, and sexual orientation in nearly all areas of public life [in California]. Why should we allow killers to use bias and intolerance as a justification for murder?"

Juries aren't always hoodwinked by the gay panic gambit. Earlier this year, Howard says, a Georgia jury convicted a man in an armed robbery case despite defense claims that he stole the car only because he was trying to get away from its owner, who had come on to him sexually.

"I'd like to say that jurors today are more sophisticated, that they are more immune from that kind of tactic," Howard says. "I'd love to say that, but I can't. After all, it was just 2003 when they came back with an acquittal in our case."

The Atlanta symposium tutored prosecutors and police on how to outwit defense attorneys who use the victim's sexuality to win points from jurors. Too often prosecutors shy away from dealing with a victim's sexual identity out of fear that jurors will react negatively. That's a mistake, Howard says: "What we're saying is that you have to address that defense head-on. If you dance around the issue of the victim's orientation, the jury will think you're trying to hide something. And there is nothing to hide. Sometimes a prosecutor can be afraid to even say the words 'gay' or 'lesbian' or 'transgender.' We can't do it that way. We've got to be honest with the jury."

Lindenberger is a reporter at The [Louisville, Ky.] Courier-Journal. Additional reporting by the Associated Press.
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Article Details
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Title Annotation:Courts
Author:Lindenberger, Michael
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1USA
Date:Apr 12, 2005
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