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

59 Pages Posted: 7 May 2015

See all articles by Kelly Strader

Kelly Strader

Southwestern Law School

Molly Selvin

Stanford Law School

Lindsey Hay

Southwestern Law School

Date Written: May 4, 2015

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 re-victimized at trial.

Keywords: Gay Panic, Criminal Law, Murder, Manslaughter, Gay Rights, Transgender Rights

JEL Classification: K19

Suggested Citation

Strader, Kelly and Selvin, Molly and Hay, Lindsey, Gay Panic, Gay Victims, and the Case for Gay Shield Laws (May 4, 2015). Cardozo Law Review, Vol. 36, 2015; Southwestern Law School Research Paper No. 2015-10. Available at SSRN: https://ssrn.com/abstract=2602493

Kelly Strader (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
213-738-6753 (Phone)
213-738-6698 (Fax)

HOME PAGE: http://www.swlaw.edu

Molly Selvin

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Lindsey Hay

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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