The 'Gay Panic' Defense

The testimony was riveting. As Aaron McKinney's former girlfriend stepped into a Laramie, Wyo., courtroom last week, the spectators fell silent. McKinney stared expressionless as Kristen Price told the jury how she had encountered the defendant hours after he had left gay student Matthew Shepard battered, bloody and tied to a fence post outside town a year ago. "I heard a scratching at the window," she said. "It was Aaron. He was covered in blood. I asked him, 'What's wrong?' And he said, 'I think I killed someone'."

Price, now 19 and nine months pregnant with another man's child, later recounted how the couple had driven to Cheyenne, Wyo., with McKinney's accomplice, Russell Henderson, and Henderson's girlfriend to dispose of the men's clothes in a Dumpster. On the way, they rehearsed what they would tell police. But during her interrogation, "I couldn't take it anymore," she testified. "I said to the officer, 'Can we start the tape again? I got some things to tell you'."

As McKinney's capital-murder trial began, the courtroom drama became almost as emotionally charged as the hate crime that had made Matthew Shepard a martyr to America's gay-rights movement. McKinney's lawyers admitted that their client had killed Shepard, but they argued that he had snapped during a drug-induced rage triggered by memories of a childhood homosexual assault. Gay activists and legal experts assailed the strategy as a "gay panic" defense, an effort to show that a homosexual advance to a heterosexual man may understandably provoke a violent response. "If women could use the equivalent of a 'gay panic' defense for every unwanted advance by men," says Richard Haynes, director of the New York City Gay and Lesbian Anti-Violence Project, "there would be no heterosexual men left."

Nobody disputes the basic facts of the Shepard case. On Tuesday night, Oct. 6, 1998, McKinney and Henderson--high-school dropouts and methamphetamine users who worked as sometime roofers--dropped by the Fireside Lounge in downtown Laramie. There they met Shepard, a slightly built gay student at the University of Wyoming. After luring Shepard into their truck by posing as gay men, McKinney allegedly told him: "We're not gay and you're going to get jacked." Then he robbed Shepard of $20 and hit him repeatedly with a .357-caliber magnum pistol before taking him to a fence line on the eastern edge of town, where Henderson tied Shepard spread-eagled to a post and McKinney beat him again. Shepard remained tied to the fence, unconscious, for 18 hours in subfreezing temperatures before a mountain biker discovered him. He died five days later. Larimer County coroner Patrick Allen testified that Shepard was struck at least 20 times and suffered six skull fractures.

Jurors winced as they viewed graphic photos of Shepard's injuries. Henderson had already pleaded guilty to the murder, just after jury selection in his April trial, and is now serving two life sentences without parole. Last week McKinney slouched in his chair as Price, who is facing trial as an accessory after the fact, painted a bleak portrait of their aimless existence. It was a life of drifting through bars and convenience stores, struggling to support their infant son in a hole-in-the-wall apartment, and snorting and smoking "eight balls" of crystal methamphetamine, keeping them awake for four or five days at a stretch.

McKinney's fate rests on whether his attorneys can convince the jury that he was so addled by drugs and psychosexual trauma that he can't be held fully responsible for his actions. If they succeed, McKinney could be found guilty only of second-degree murder or manslaughter and be spared the death penalty. Public defender Jason Tangeman told the jury that McKinney had been forced at the age of 7 by a neighborhood bully into sex acts with other boys. McKinney's consensual sex with a male cousin when he was 15 had left the former roofer troubled over his sexual identity, the attorney claimed. McKinney didn't plan to murder Shepard, he argued, but exploded in "five minutes of rage and chaos" when Shepard, sitting in the truck, "grabbed Aaron's genitals and licked his ear."

Will the "gay panic" defense work? Though the gambit often resulted in acquittals or reduced charges in the murders of homosexuals during the 1960s and 1970s, it has had less success lately. Earlier this year Jonathan Schmitz was convicted of second-degree murder and sentenced to 25 to 50 years in prison after shooting to death his neighbor Scott Amedure, who had confessed his crush on Schmitz during a taping of the "Jenny Jones" show. The jury was unmoved by Schmitz's contention that he killed Amedure in an insane rage. In Laramie, district court Judge Barton Voight warned McKinney's attorneys late last week that unless they can find a legal precedent for the "gay panic" defense under Wyoming law they may not be able to use it. The attorneys may be forced to fall back on the argument that a deadly combination of drugs and drink, not malice, drove McKinney to kill. Matthew Shepard may thus be spared from becoming a target one final time.