Sunday, August 31, 2014

Homosexuality and Criminal Law

So Cali got rid of the Gay Panic defense.  The Gay Panic defense is really just a way to make homosexuality relevant so you can bring it up and hope there are a few homophobes on the jury that will acquit your client.

Generally, I hate to see one of the few accepted defenses to law breaking disappear, but I'm ok with this one.  I would feel bound to use it, and while I'm not usually much bothered by what I do for a living, I could see this troubling me.

You know, Idaho is actually a lot less homophobic than most think.  Most of the cities passed bans on using homophobia to discriminate.  While the Republic Party's platform usually includes various homophobic things, so far, the state seems to be moving inexorably toward not sounding like a bunch of old cranky white guys.

Yeah we did have that lawsuit for the old woman who wanted to be buried with her mother in a state cemetery.  But that was the executive mostly and they have to deal with their base and politics yada yada.

ANYWAY I actually wanted to talk about this.  Because prosecutors claiming that homosexuality is related to pedophilia DOES happen in Idaho.

The story is as old as time: gal is a lesbian, someone claims molestation, clearly her lesbianism means she wants to touch kids!  Duh.

Then the Court of the 4th Appellate District (Cali is big) said f that nonsense:

So by linking appellant’s sexual orientation to the issue of motive, the prosecutor essentially told the jury the reason appellant chose to victimize A.G. is because she is gay.  

We have grown beyond that notion. “[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality. The existence or absence of one neither establishes nor disproves the other.” (State v. Crotts (Ohio 2004) 820 N.E.2d 302, 306.) While there are some early cases to the contrary (see e.g., People v. O’Moore (1948) 83 Cal.App.2d 586 [equating homosexuality with sexual perversion]), California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex. (People v. Giani (1956) 145 Cal.App.2d 539 (Giani).)

In Giani, the trial court granted a new trial to a male defendant accused of sexually molesting a boy, due to the fact the prosecutor elicited evidence the defendant was a homosexual. (Giani, supra, 145 Cal.App.2d at p. 541.) In affirming that ruling, the Giani court rejected the notion that a person’s sexual orientation has any bearing on their propensity to commit sex crimes against children. (Id. at pp. 543-544.) Indeed, the court considered the idea of using evidence of a defendant’s homosexuality to prove they molested a child of the same sex about as farfetched as using evidence of a defendant’s heterosexuality to prove they committed rape. (Id. at p. 543.) It is painful to find this battle still being fought 58 years later.

The Attorney General argues, “Appellant’s sexual preference for females only went to the gender of her victim, not to her predilection for children over adults.” “[T]here is a modicum of relevance concerning appellant’s sexual preference for females given that she and her victim were females.” This argument assumes gay child molesters are more likely to victimize children of their own sex than of the opposite sex. However, “there is no evidence that lesbians are especially likely to abuse girls” as compared to boys. (Becker, The Abuse Excuse and Patriarchal Narratives (1998) 92 Nw.U. L.Rev.1459, 1467.)

The point the Giani court made before the lawyers in this case were born is no less true today. Trying to draw a connection between a child molester’s sexual orientation and a preference for children of one gender or the other is problematic to the point of counterproductivity. “Many child molesters cannot be meaningfully described as homosexuals, heterosexuals, or bisexuals (in the usual sense of those terms) because they are not really capable of a relationship with an adult man or woman. Instead of gender, their sexual attractions are based primarily on age.” (Herek, Facts About Homosexuality and Child Molestation, at p. 3, <> (as of Aug. 3, 2014) (hereafter Herek, Homosexuality);see also Murray, Psychological Profile of Pedophiles and Child Molesters (2000) 134(2) The Journal of Psychology 211, 215 [an important factor in child sexual abuse cases is “the availability and vulnerability of children rather than a particular sexual attraction”]; McCloskey, et al., Adult Perpetrator Gender Asymmetries in Child Sexual Assault Victim Selection: Results from the 2000 National Incident-Based Reporting System (2005) 14(4) Journal of Child Sexual Abuse 1, 2 [female sex offenders choose child victims of both genders with equal regularity]; Freund, et al., Erotic Gender Differentiation in Pedophilia(1991) 20 Archives of Sexual Behavior 555 [sexual arousal study indicating pedophiles are far less likely to choose their victims based on gender than are other adults in selecting their sexual partners].)

That being the case, we do not believe the evidence of appellant’s sexual orientation was relevant to her prosecution. Period.

You have to love it when a court gets sassy in an opinion.

Anyway, as some of us still find ourselves confronted by these tactics, I think this is a pretty good opinion for attorneys to be aware of.  And who knows, could be the AG appeals it and we get a Cali Supreme Court opinion on the issue.  Can't see that turning out well for the state either, but I could see an AG thinking, let's just push this all the way and be done with it.  Either it's going to be a thing, or it needs to be wiped out statewide.

Amen to that.


  1. I've never heard of an Idaho prosecutor equating adult homosexuality to pedophilia.

    1. Not equate, relate. The argument runs thusly: if Bob likes men, he's more likely to have touched a boy than if he liked girls. It's absolutely false and ridiculous, but it has been argued, even rather recently, in Idaho.