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Criminal Responsibility, Diminished Capacity, and the Gay Panic Defense

NCJ Number
Journal of the American Academy of Psychiatry and the Law Volume: 28 Issue: 4 Dated: 2000 Pages: 454-459
Barry W. Wall M.D.
Date Published
6 pages
This paper argues that the "gay panic" defense is inadequate to justify diminished capacity or diminished criminal responsibility and that forensic psychiatrists should resist providing unjustified clinical support for this concept when performing these evaluations.
The "gay panic" defense is the legal strategy of a defendant who requests to be at least partially excused from criminal conduct by portraying himself as the victim of a homosexual advance. This defense has been raised in some cases across the United States since the 1960's, with varying degrees of success. The use of the "gay panic" defense is most relevant to forensic psychiatry because of its relationship to diminished-capacity and criminal-responsibility evaluations. This article first presents the legal concept of provocation and its relationship to diminished capacity and criminal responsibility. It then outlines the "gay panic" defense, including characteristics of the outdated clinical term "acute homosexual panic." The author presents examples of the application of the "gay panic" defense in case law and explores arguments for and against its use. The author advises that although some recent court decisions have allowed for a reasonable man to be found to have diminished capacity for the killing of a gay man because of a homosexual advance, there is little empirical evidence to justify excusing or mitigating criminal behavior on the basis of anxiety that stems from a nonviolent homosexual advance. Consequently, forensic evaluators should be wary of advocating for the potential relevance of gay panic, because there is meager evidence to support its existence; and the anecdotal characteristics of gay hate crimes are not consistent with known characteristics that are associated with criminal responsibility or diminished capacity. 36 references