Minnesota could outlaw the 'gay panic' defense this year, but probably won't


Matthew Shepard's 1998 murder by torture is one of the most notorious employments of the 'gay panic' defense tactic. Associated Press

It was a windy, cool day in Ottumwa, Iowa on March 11, 2012 when Kenneth McDaniel was killed.

His body lay three feet away from the entrance to his business, an adult theater called Cinema X. McDaniel’s head had been bludgeoned by a crow bar, and his neck showed signs of strangulation.

Security camera footage showed a suspect entering the theater and leaving with a black bag in tow.

Two days later McDaniel was found, and police arrested Bruce Pollard as the chief suspect for the crime.

Four months later in July, the state charged Pollard with first-degree murder and first-degree robbery. In his trial, Pollard claimed he acted in self-defense. According to court documents, Pollard alleged in a letter to his girlfriend’s mother that McDaniel had sat “real close” to him, and he panicked.

The jury rejected this defense and found Pollard guilty of both counts. Some advocates now wish such a defense couldn't be mounted in the first place.

Pollard's excuse for murder is an example of a “gay panic” defense, when people claim an LGBTQ person’s unwanted advances on them caused them to react -- to panic -- and injure or kill the LGBTQ person in an act of self-defense.

Sen. Scott Dibble, DFL-Minneapolis, introduced a bill in February that would ban the defense in Minnesota. However, the bill is currently stuck in an unfavorable committee: the Judiciary and Public Safety Finance and Policy committee, headed by Sen. Warren Limmer, R-Maple Grove.

Limmer was a chief author on the 2012 Minnesota constitutional amendment that would have banned gay marriage.

“I’m going to talk to [Limmer] and try to persuade him that [they gay panic ban] has merit,” Dibble says. “Frankly, I am not hopeful he’ll give me a hearing … but I’m going to try.”

Defenses like Pollard’s have been used since the 1960s, and according to a 2016 report from the Williams Institute, a gender law center out of UCLA, the tactic has been employed both to justify murder and to argue for lesser charges.

Aside from Bruce Pollard's murder of Kenneth McDaniel, notable past uses of the gay panic defense include Matthew Shepard, the Wyoming man tortured to death in 1998, and Scott Amedure, who was killed after declaring his crush on another man on an unaired episode of the Jenny Jones show.

In both of those cases, the defense failed, but even having it as an option brings up “very fraught issues, because … [it] really furthers stigmas and prejudice against the LGBT community,” says Christy Mallory, a lawyer from the William’s Institute.

Mallory and her colleagues prepared the 2016 report and included model legislation for states to outlaw the “gay panic” defense as an applicable legal strategy.

California was the first state to ban the defense, in 2014, and Illinois banned it this year.

Mallory says it is difficult to assess the full scope of the defense, as their report did not have access to jury deliberations. They found that lawyers have largely used the defense in three ways: to support arguments that showed that someone was provoked due to learning sexual orientation, to show the defendant was under a temporary mental impairment, or as a matter of self-defense.

In 2015, the American Bar Association, a professional organization of lawyers, passed a resolution against the defense. “When you think about it, it’s pretty unusual for attorneys to ban any other [defenses],” Dibble said.

Dibble is aiming to at least broach the conversation in the Senate public safety committee, and will see what happens from there. The bill currently has no Republican coauthors in either chamber, and a companion bill authored by Rep. Erin Maye Quade, DFL-Apple Valley, has also yet to even receive a committee hearing.

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