15 Year Old Gay Student Killed, "Gay Panic" Used as Defense

Prosecutors are scrambling to arrange another trial for a teenager who shot and killed a gay classmate after the first ended in a mistrial.

Seventeen-year-old Brandon McInerney, then 14, shot 15-year-old Larry King twice in the head in the middle of class. According to a friend’s testimony, McInerney decided to bring a gun to school after King regaled in him the hallway with, “What’s up, baby?” He pulled the trigger shortly after hearing that King was considering changing his name to Latisha. 

Jurors had no doubt that McInerney killed King.

What they could not determine was the degree of the offense — was it manslaughter or homicide? The disagreement stems from the defense’s argument that McInerney was responding to persistent advances from King.

Defense lawyers argued that King had embarrassed McInerney repeatedly with sexual advances, painting a picture of McInerney as an intelligent young man abused by his family and harassed at school. They also brought in classmates and teachers to testify that King’s effeminate behavior and dress was distracting to other students.

The argument has been seen by LGBT advocates as a variant on the “gay panic” defense, in which extreme revulsion at gay overtures inspires a momentary state of lesser moral responsibility, akin to a temporary insanity defense. Such a defense has played a role in more than 45 cases nationwide, according to Equality California.

In a University of California—Berkeley Law Review article [PDF], George Washington University law professor Cynthia Lee wrote that the “gay panic” defense has been frequently used to reduce sentences in the killings of gay and transgender people, even without backing from psychological authorities.

But there is no data supporting a mental disorder that would respond specifically to homosexual advances.

“Gay panic seems to stem from a specific construction of masculinity, one that values heterosexism and violence as traits of the masculine and implicitly rejects homoerotic desire,” Lee wrote in the law review article.

Despite this, the defense psychologist claimed that McInerney was in a dissociative state when he shot King—invoking shades of a diminished capacity defense, along with the more common “provocation” defense.

Diminished capacity, in one variant, reduces murder charges to manslaughter because the defendant is not in the proper mindset required for premeditation. California abolished the diminished capacity defense in 1982, following its successful use in the infamous Moscone-Milk assassination trial in which Dan White was convicted of voluntary manslaughter rather than homicide.

With the abolition of diminished capacity, provocation remained the touchstone for the defense.

“Under the provocation doctrine, a defendant charged with murder can be convicted of the lesser offense of voluntary manslaughter if the jury finds that the defendant was actually and reasonably provoked into a heat of passion,” Lee wrote.

Many jurors agreed that King’s advances constituted provocation: Seven of twelve voted to convict McInerney of voluntary manslaughter (and thus find him not guilty of murder). The other five jurors voted to convict McInerney of first- or second-degree murder. 

But the provocation defense not only excuses violent homophobia, it also reifies society’s construction of homosexuality as an aberrant condition; a provocation argument places the blame on the failings of society rather than the actions of an individual.

While McInerney was very young—and possibly should not have been tried as an adult for a crime he committed at age 14—the law must hold individuals to a higher standard than their frequently intolerant milieu.