Twenty Years After Matthew Shepard's Death, What's Changed? - Pacific Standard

Twenty Years After Matthew Shepard's Death, What's Changed?

Shepard's murderer unsuccessfully claimed gay panic, a defense that's still legal in 47 states.
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Two men embrace each other at a vigil for Matthew Shepard at the Capitol in Washington, D.C., on October 14th, 1998, two days after he died. Thousands converged outside the Capitol to call for political action to help stop hate crimes and to draw attention to victims of anti-gay violence.

Two men embrace each other at a vigil for Matthew Shepard at the Capitol in Washington, D.C., on October 14th, 1998, two days after he died. Thousands converged outside the Capitol to call for political action to help stop hate crimes and to draw attention to victims of anti-gay violence.

Matthew Shepard was 21 years old when he died on October 12th, 1998. He'd been lying in a hospital bed for six days in a coma he'd never wake up from. He was found tied to a fence in Laramie, Wyoming, beaten and pistol-whipped, and left out in the bitter cold for 18 hours. Next week, Shepard's remains will be interred in the Washington National Cathedral in Washington, D.C., after 20 years without an official resting place. His parents, Dennis and Judy, worried any grave site would be subject to vandalism.

One of his murderers, Aaron McKinney, tried to use what's known as a "gay panic" defense at trial: that Shepard's sexual advances had pushed him into a state of temporary insanity that drove him to kill. McKinney's attempt is one of the more famous gay or trans panic claims in the legal record, despite the fact that the judge rejected the defense. McKinney was found guilty of felony murder and received two consecutive life sentences—Shepard's parents advocated against the death penalty for him.

Although Shepard's murder has entered the public consciousness as an example of gay panic, it's worth noting that the defense has a long history outside that trial. According to the LGBT Bar Association, it's usually invoked in three legal senses to mitigate murder charges: a defense of insanity, provocation, or self-defense. The gay panic name comes from the first defense, named for an outdated psychiatric concept coined in 1920. In 1952, the Diagnostic and Statistical Manual of Mental Disorders listed "homosexual panic disorder," but the term has not appeared in the DSM since (and was controversial even in 1952). Two decades later, in 1973, the American Psychiatric Association removed homosexuality as a disorder from the DSM.

Still, gay panic persists in the courts. A University of California–Los Angeles law review found that, since 1960, about half the states have issued court opinions dealing with the defense—and 16 of those were after 2000. Often, it doesn't work: Florida, Illinois, and Kansas courts have rejected the defense under state laws, and juries have rejected it across the country. But sometimes it does work, either by deadlocking juries or mitigating murder charges.

In September of 2015, 32-year-old Daniel Spencer was stabbed to death in his own home in Austin, Texas. He'd moved there a year earlier from California to help his digital film company expand in the growing city. He was a musician who loved the music scene in Austin, his father said; he'd played in his high school and college marching bands and taught himself guitar and piano. His murderer, James Miller Jr., claimed he killed Spencer in self-defense after Spencer had come on to him. News outlets across the country—the Washington Post, HuffPost, ABC—reported what he told the police later: "We're musicians and all that kind of stuff, but I'm not a gay guy." He was charged with murder. In April of 2018, a Travis County jury found Miller guilty of a lesser charge, criminally negligent homicide. He received a sentence of 10 years' probation and six months in county jail.

And in February of 2008, Larry King, an Afro-Latinx 15-year-old in California, was shot by a classmate. King visibly flouted gender norms, wearing make-up, earrings, and feminine accessories to school, and may have been transgender (King told a classmate "Call me Leticia" shortly before the murder); classmates and teachers openly disapproved. The murderer, Brandon McInerney, a budding neo-Nazi, claimed King humiliated him by asking him to be valentines in public. He shot King twice in the back of the head. Almost three years later, in 2011, after a trial that held the defendant's behavior and identity up to extreme scrutiny, a jury deadlocked and created a mistrial. In November of that year, McInerney pled guilty to second-degree murder, voluntary manslaughter, and use of a firearm.

A paper in the Cardozo Law Review explicitly compared King to Shepard: "It is hard not to notice ... the difference between the public perceptions of Larry King (the multiracial, small, effeminate victim with adoptive parents) and Matthew Shepard (the cute white college boy with articulate parents who used his case to launch a nationwide gay rights campaign)." King's race, femininity, and behavior made the case inherently less sympathetic to the nation and the jury, the paper argues. Shepard—white, young, not too effeminate—was a suitable poster boy against gay panic, even though the defense is often used in the murders of trans women (usually women of color), like Jennifer Laude, Angie Zapata, and Gwen Araujo.

Some legal remedies have been proposed: Potential "gay shield" laws would exclude evidence pertaining to the victim's history, identity, and behavior (the way rape evidentiary shield laws protect a victim from cross-examination of her sexual reputation and behavior) to avoid playing on the potential homophobic and transphobic biases of a jury.

Other jurisdictions have banned the defense entirely, including California in 2014, Illinois beginning in 2018, and Rhode Island in June. The American Bar Association passed a resolution to remove it in 2013, and bills to outlaw it have been proposed in multiple states and Congress.

Shepard is immortalized because of the brutality of his murder, the media frenzy around his trial, and the work of his parents, who created a foundation in his honor and lobbied for a federal hate crimes law named for him. Shepard is so famous that his legacy overshadows the bill's other namesake, James Byrd Jr., a black man lynched by white supremacists four months before Shepard's death. His life and death have been catalogued in plays, movies, documentaries, poems, music, books, and countless profiles and magazine articles.

At the time of the murder, national controversy centered on the fact that Wyoming had no hate crime law at all. In 2014, a federal court overturned Wyoming's ban against same-sex marriage, and the state declined to defend the ban. Laramie, the city where Shepard died, passed an ordinance banning discrimination based on gender identity or sexual orientation in 2015.

But today, despite Shepard's fame, two decades of activism, and the federal law named for him, Wyoming still doesn't have any hate crime laws, and those on trial can still try to use a gay panic defense.

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