In a country that used to criminalise homosexuality, it isn’t much of a surprise that the gay panic defence continues to be a valid legal defence in courts all across the country. The defence is usually used against charges of simple or aggravated assault and murder of a queer person. Anyone using the defence essentially claims that they committed the crime under temporary insanity induced due to the homosexual advances of the victim. The defence was birthed in the United States of the 1960s and has historically been disproportionately used by men.
Recently, a 35-year-old Mumbai resident who was convicted of murder and sentenced to life in prison by a district court for repeatedly stabbing his gay friend seven years ago, was released and charged with culpable homicide instead of murder, and sentenced to the time he already served on appeal to the Mumbai High Court.
His attorney claimed the murder was a result of the rage caused by the victim’s advances, that rendered the accused temporarily insane and the court agreed with this view stating, “We are of the considered view that the explanation, as given by the (accused), is plausible. If a person is asked to indulge in unnatural sex and assaulted, it is quite probable such a person in heat of passion would assault the person demanding such unnatural act”.
The defence and its legal backing come entirely from our need to control who people are and how they choose to be, in the name of culture, tradition, and morality.
This defence is a violent and troubling manifestation of our collective homophobia that now presents itself in the form of legal physical violence and killings of the members of the LGBTQIA+ community only because our ideas of sexuality, love, and marriage are narrow, regressive, and one-dimensional.
The basis of the defence, that is, temporary insanity caused by the proposition of ‘unnatural sex’, has been rubbished by psychologists. The defence and its legal backing come entirely from our need to control who people are and how they choose to be, in the name of culture, tradition, and morality. We deny basic human rights to those who do not subscribe to our dated ideas of being.
Another aspect that cannot be overlooked is the fact that the defence is disproportionately used by men. Women have almost never used the defence ever since it came into being nearly six decades ago. This just further goes on to prove that the defence doesn’t take root in science, but in a culture of homophobia and toxic ideas of masculinity that has existed for centuries and continues to.
Gay men have always been associated with being feminine and are thought of as being incapable of being ‘real’ men when compared to heterosexual men. This idea forms the basis of the increased aggression of heterosexual men towards homosexuality in men when compared to homosexuality in women. Heterosexual men are also taught that female homosexuality exists for their pleasure, for them to fetishise and enjoy, but homosexuality in men is associated with submission and a loss of power to another man, thus going against the narrative that encourages men to establish an ‘alpha’ status around other men.
Another similar and equally barbaric defence that stems from our toxic ideas is the transgender panic defence, which isn’t too different from the gay panic defence. It is used to justify the assault or killings of transgender people, usually by someone who engaged with them sexually and later found out about their non-binary identity. This defence is once again disproportionately used by men, with almost no women using it since it was allowed in courts as a valid legal defence.
The gay and transgender panic defences are legal tactics employed by attorneys and defendants to avoid full sentences for crimes by appealing to our collective homophobia and transphobia that stems from our narrow acceptance of only cis-heterosexuality, and our hatred and anger towards anyone and anything that might challenge this.
Hatred towards the LGBTQIA+ community due to their defiance of heteronormativity and gender binaries is so ingrained in our culture that we incorporate these ideas in young children and provide for a culture that trivialises homophobia and transphobia and makes a mockery out of the lives, struggles, and stories of the LGBTQIA+ community.
Heterosexual men are taught homosexuality in men is associated with submission and a loss of power to another man.
We are used to seeing everything in very one-dimensional terms, as heteronormative or disallowed, as binary or unacceptable. We rarely, if ever, incorporate differences. All our talk about diversity is just that, talk. We shouldn’t be making claims of taking pride in our diversity until we actually learn to appreciate differences and afford everyone basic human rights, even if they may not choose to live or be the same way as we do.
Defences like these don’t just infringe upon the legal rights of the members of the LGBTQIA+ community, but contribute to them being kept away from public life and our inability to guarantee them a safe and agreeable social existence. It allows for us to take away their personhood and to force them to live in the constant fear of looming violence and to feel unsafe in their own states. The law is said to be everyone’s, but that doesn’t hold true here, where the right to be protected by the law, to be safe, and the right to life, are determined by conformity to dated and toxic ideas of what one must be, must do, and ultimately, must think and believe.
Although, with the Supreme Court’s historic ruling repealing Section 377 on September 6, 2018, there seems to be hope. The ruling could birth paramount change that can make a difference in the lives of the members of the LGBTQIA+ community, and afford them an existence devoid of fear and faith in their legal system to protect them. This ruling could ultimately hold the potential to pave way for the abolition of barbaric defences like these from our courts, which go against every principle of justice the criminal justice system claims to stand for.
The scrapping of Section 377 although does not render the gay panic defence invalid. A lot of countries that legalise same-sex intercourse and have marriage-equality, continue to have this defence. This defence doesn’t take root in the legality of same-sex intercourse or homosexuality, but in a culture that allows aggression and violence towards members of the LGBTQIA+ community for non-conformity with existing societal norms.
Featured Image Source: Vice