He Asked For A Robbery And He Got It
That is undoubtedly right, and yet, on a rational level, it is no argument for the defense. What the law calls "but for" causation -- the idea that an event would not have occurred "but for" another previous event -- is no defense to crime. If the robbery victim had not been in the alley where the robber lay in wait for victims, he would not have been robbed. If the company auditors had been more careful with the accounts, the embezzler could not have stolen the money. And yet, such intervening causes are considered of no account in the criminal law. We are all called upon to act with restraint, despite opportunities to commit crimes.
Despite this, there are slightly different rules in the law governing first-degree murder, which requires not only involve an intent to kill, but "premeditation." That means murders occurring in the "heat of passion" are not included, permitting arguments about the intent state of the defendant. A murder that occurs during the course of a fight, or where alcohol or drugs or illness severely impairs one's judgment, or because someone has been provoked beyond reason into a fight, is not first-degree murder. It is, instead, murder "in the heat of passion," when people are not thinking clearly and are not held responsible for the "malice aforethought" that constitutes the most severely punished type of murder -- first degree murder. It is still punishable, but not as severely because, in the opinion of society and the law, the murderer is less culpable.
In charges of first-degree murder, the defendant is often heard to plead that the victim provoked the murder, by taunting the defendant, or physically abusing the defendant, or sleeping with the defendant's wife or husband. We can all understand how these provocations might, in the right circumstances, being flung in someone's face, make even a mild person "snap," as it were, and lead to a rash act.
But there are certain things we are not prepared to accept as a "reasonable" provocation. The fact that someone hates people of a particular race or ethnicity, for example, is not generally accepted as "reasonable" provocation. It might have actually acted as a factor that provoked the defendant, but our law does not consider that as a reason for diminished responsibility. A defense lawyer would not be allowed to make such a case, ask questions insinuating as much, or argue it to the jury.
The Gay Made Me Do It
When it comes to sexual orientation and gender identity, however, defendants are often heard to argue that such factors provoked them into murder, and plead diminished responsibility. Lawyers for such defendants routinely argue that some sort of unwanted advances were made, causing the defendant to "snap," and that such unwanted advances are a "reasonable provocation." I am not talking about physical advances or attempted rape -- that is a different defense altogether. I am talking about mere talk -- a verbal suggestion or behavioral cue from which the defendant infers, rightly or wrongly, that a person is sexually interested in another.
This is not the sort of argument that would make sense in an opposite sex case. A woman who murdered a man would never argue that his statement that he was sexually interested in her diminished her responsibility for murdering him, and even less in the case of a man who murders a woman. But in same sex cases, courts have routinely allowed it. It is a disgusting argument, which essentially boils down to the idea that the possibility that a person of the same sex could be attracted to you creates some justification, however slight, for murder.
And yet, it is happening right now in the Larry King case. It is a seductive argument, one that is constructed from the fabric of social rules that surround us and our conduct. Men, and boys, are expected to be aggressively homophobic, and a gay man or boy who acts in defiance of that knowledge is provoking murder. It is not only homophobic people who advance this argument. I have heard gay and trans people advance the argument as well, saying that, while they don't excuse the murder, one should be smarter about what one says to whom, or how close a friendship or acquaintanceship should be allowed to get, implying that the victim bears some responsibility. I found myself, as I read the testimony about the "aggressive" and "provocative" behavior of 15 year-old Larry King, kind of wondering what he thought he was doing. Didn't he know that someone might kill him for that kind of behavior?
(I note that I am using masculine pronouns regarding King, though there is evidence that he seriously questioned his gender identity. Gender neutral pronouns may be more appropriate, or even female pronouns. But that introduces another layer of complexity into an already dense argument, so I reserve that for another time.)
Yes, didn't he know it? He was warned by at least one teacher that other students couldn't take his flamboyant behavior, wasn't he? It took a while to catch my internalized homophobia at work, to see the ugly workings of prejudice wrapping its tendrils around my mind.
What If Larry And Brandon Were Cindy And Leroy?
We all live in the same society, exposed since childhood to rigid social roles of men and women. Men are from "Mars;" they experience no emotions, they are uncommunicative, stubborn, hypersexual, argumentative, prideful, rageful, and to be respected as potentially violent, and rightly so, as the argument goes. Those men, and particularly boys, who are less than vigilant about fulfilling these stereotypes are at risk of being considered effeminate, weak failures, derided mercilessly, and rightly so, as the argument goes.
Of course, these are stereotypes of male culture, but they are stereotypes that are lived every day by many men and boys. Some men ignore these rigid gender roles; many find that they cannot or will not. As a result, when we look at men and boys, what we see is colored by this lens. We interpret their actions and words in the light of who we expect them to be.
We interpret the actions and words of women and girls quite differently. This filter operates automatically, effortlessly and relentlessly. The effort comes in trying to put aside these heterosexist and homophobic assumptions. It can be very, very hard for those steeped in a macho culture.
If Brandon and Larry were not both boys, a quite different set of assumptions would come into play. Here is a similar story about another killing that occurred in 2003. I will try to discuss the case as objectively as the King case has been discussed in the media. As you read it, think about your judgments as to what likely happened in this situation, and where responsibility lies.
The Story of Cindy and Leroy
At 15, Cindy Murphy was growing up fast -- some say too fast. In January, 2003, she started to show up for class at Chicago's Braynard Junior High School, located in a blue-collar, working-class neighborhood, decked out in provocative attire. On some days, she would do her hair and makeup in a way that made the teachers blanch, and some said she flaunted her looks for the attention. She wore stilettos and short skirts. She thought nothing of chasing after the boys at school in them. Her special crush was Leroy Taylor. Her interest was not returned.
Leroy Taylor, 14, a lean, well-muscled athlete, was a very shy young man. He had not dated any girls, and seemed to have all his attentions focused on his sports. His parents had a difficult, tempestuous relationship, with flying accusations of domestic violence and drug use preceding a difficult divorce. Some say he was a troubled young man. He was alone a lot, until he began hanging out with a group of misfits.
Cindy's life was also hard, with a drug-user mother and a father accused of physical abuse, resulting in placement in a foster home. She acted out from an early age, shoplifting and destroying property when angry. Kids started whispering about Cindy, calling her names, and she got into fights with some of the girls. Boys would take pictures of her on their cell phones and pass around the pictures.
The staff at Braynard was clearly struggling with the Cindy situation--how to balance her right to youthful self-expression while preventing it from disrupting others. Cindy pushed it to the limit. During lunch, she'd sidle up to the popular boys' table and say in a throaty voice, her cleavage exposed, "Mind if I sit here?" In the gym, she often told the boys, "You look hot." The school superintendent noted that the front office received no complaints about Cindy, but some teachers say they tried to make complaints about what was going on. Several boys told a teacher that Cindy had taunted them, saying "I know you want me," and their friends were giving them flack about it.
Cindy really liked Leroy, but he made it plain that he did not return the feelings. That seemed to provoke her even interest more. One student remembered that Cindy would often walk up close to Leroy and stare at him. She studied Leroy so closely that she once knew when he had a scratch on his neck, and claimed that she had given it to Leroy when the two were together. Cindy even went so far as to tell Leroy that she would tell the entire school about them, if Leroy wasn't nicer to her. Cindy once marched up to Leroy on Valentine's day, despite his obvious discomfort, interrupting a handball game, and loudly asked Leroy to be her Valentine. Leroy's friends started joking that he and Cindy were going to "make babies."
On the morning of February 18, 2003, at 10:30 a.m., Leroy stood up in a computer class, pulled a handgun from his sports bag, walked over to Cindy and fired a single shot to her head, killing her instantly. Leroy fled the classroom, and was picked up by the police later that day, and charged with first-degree murder as an adult.
The obvious question now is whether Cindy's death could have been prevented. The school superintendent blamed easy access to guns. For many, however, the issue is whether she was allowed to push the boundaries so far that she put herself and others in danger. Their attitude toward her assailant is not unsympathetic. They say that the bullying was coming from the other side. They say Cindy was pushing the boundaries too hard because she liked the attention.
Leroy's father said his son was being terrorized and stalked, blaming not only Cindy but the school as well for allowing it to happen. Some say that the incident has implications for schools across the country. "We have got to think long and hard about the way some young girls are allowed to flaunt themselves," said Marjorie Smith, a school board member.
After a July 2006 trial, Leroy Taylor was found guilty of first-degree murder and given a life sentence.
Blaming The Victim?
After reading this write-up of the case, do you think that Leroy Taylor was guilty of premeditation, or was it done "in the heat of passion," and therefore not first-degree murder? To what extent can the argument be made that Cindy Murphy's dress and behavior reduces Leroy's guilt? Is the school to blame in part for Cindy's murder?
I think it should be obvious to all that Cindy's dress and behavior should play no part in considering Leroy's guilt. This is akin, albeit much more severe, to arguing that a rape victim "asked for it" by wearing a short skirt and flirting. Whether or not her displays of femininity were appropriate, there can be no reasonable argument of justification here for his act. We might have a conversation about appropriate dress in a school setting, and the limits of self-expression, but there is no rational position here that Cindy's dress and behavior constituted a legitimate provocation to murder.
A Fictional Case
The case of Cindy Murphy and Leroy Taylor is entirely fictional. I know of only one case that bears any relation to my fictional story: the story of Larry King and Brandon McInerney. In fact, I tailored the story from a story written in 2008 by writer Ramin Setoodeh. of Newsweek and The Daily Beast. (h/t Projector GinaSF) I retained the salient facts of the case as written by Setoodeh -- the dressing up, the trouble with classmates, the troubled background of the main characters, their manner of relating to one another, and the statements of school teachers and officials. The purpose of that is to keep unchanged the nature of the relationship and the types of dress and behavior involved, changing only the genders of the participants. I changed and omitted less relevant elements to shorten the story to blog post length. But I wanted in all material respects this fictional case to mirror the elements as laid out by Setoodeh.
The story as written by Setoodeh is surely accurate in its details, but extremely slanted and tendentious. It was, essentially, a "gay panic" defense story, designed to back up Setoodeh's beliefs about how boys should act, or not act, and particularly one gay boy. It is interesting to note, in this context, that Setoodeh, an openly gay man, has written that he believes that an openly gay actor cannot convincingly play the role of a heterosexual man, and that failure of actors and gay roles to live up to masculine stereotypes is a source of homophobia, hurting the cause of gay rights.
Meanwhile, defense attorneys have scrupulously followed Setoodeh's script in making their case that Larry bore responsibility for his own murder. The media reports on Friday, as I discussed in my previous post, played up the idea that Larry was sexually harassing McInerney, with one witness, special education teacher Anne Sinclair describing how King placed his midsection near the face of another student in an unrelated incident. The testimony left unclear the question of whether the placement was an unintentional result of standing near the sitting teacher and student while requesting to use the bathroom. The teacher denied King's request, and King protested, Sinclair called it sexual harassment, although she acknowledged that she had not previously labeled the behavior as such until the trial. There was also testimony about King saying "love you, baby" and blowing kisses to McInerney, as well as his actions on a few occasions of moving to sit at a table with the "cool kids," which then cleared the table of all the boys. The implication is that King's behaviors were part of a brazen attempt to woo an unwilling and frightened McInerney.
But, as commenter Regan DuCasse explained on Friday,
I spent a long day working with one of Larry's counselors from his group home. She's been furious at Setoodeh's report in Newsweek and in the LA Times since this happened. She told me that Larry was much smaller than BM [Brandon McInerney] and was afraid of him. BM did deliberately and for weeks, bully and intimidate LK because of LK's mannerisms. To call anything LK did 'harassment' is to assume that LK had the power or inclination for ongoing challenging or threatening behavior. LK wore a uniform to school, so he didn't have the ability to wear a girl's outfit to school. He was given a dress for use outside of school.
LK was, she said, a VERY charming and entertaining kid with a beautiful voice. He wore about as much makeup as one would see on Prince or Adam Lambert.
She told me LK was very cute and liked by most kids because he WASN'T a scrapper or someone out to intimidate anyone, but he didn't mind being the center of attention either.
Kids with performing arts talent or aspirations are like that. All very normal really.
It was BM who did all the harassment, bullying and intimidation. And he told other kids that he wanted to kill LK and he did. In as brutal, cowardly and cold blooded a manner as possible.
As I shouldn't have to say, a gay or trans kid will offend someone by entering a room. There doesn't need to be contact or even acquaintance to be threatened, assaulted or murdered by someone who is a committed homophobe.
It's the teaching that any member of the LGBT is worthless, threatening or predatory is why the gay panic defense has worked in favor of the perpetrator. Who usually would get off, or got little time considering the 1st degree nature and brutality of their crimes. In any OTHER similar case, they'd go away for life. There shouldn't even be a question here of who was more threatened and who carried out their threat in the end.
One thing that have learned from my years of practicing law is that everyone in a courtroom lies, or at least shades the truth very strongly, including the judge and the jury. The witnesses are all hiding things and making more of certain things than is warranted by the facts. The jury wants to finish up the case and get out of there, and doesn't worry much about questioning their biases.
If this were an opposite sex situation, everyone would be seeing this with a very different set of assumptions. In the final analysis, regardless of whether Brandon was the special subject of Larry's unwanted attentions or not, Brandon McInerney premeditated this murder, and it is not less than first-degree murder due to Larry King's dress or behavior. I condemn any slanted media coverage that gives credence to such homophobic rubbish.