Beaten, Bound, Burned

November 18, 2010 7:04 PM

Echoing the brutality of the Matthew Shepard case, a Texas teenager blames his slaying of classmate Josh Wilkerson on unwanted gay advances. (He has also been charged with failing to identify himself and attempting to take a weapon from an officer.) While the "gay panic" defense is often considered something of a joke, it's clearly still very much alive.
posted by hermitosis (53 comments total)

Just wanted to clarify right off the bat that I have seen nothing online indicating that Wilkerson was actually gay, or that there is any evidence that the Moralez's story about the gay advances is true. Considering his total unhelpfulness with law enforcement, it's possible that entire part of the story is made up.

The idea that someone might expect it to be accepted as a defense for murder is tragic regardless.
posted by hermitosis at 7:04 PM on November 18, 2010 [3 favorites]

Just wanted to clarify right off the bat that I have seen nothing online indicating that Wilkerson was actually gay.

Why does this matter?
posted by null terminated at 7:08 PM on November 18, 2010

It doesn't, that's the point.
posted by boo_radley at 7:13 PM on November 18, 2010 [4 favorites]

I just don't want to rush to characterize him as gay when the details are as yet unknown. I felt it important to draw that distinction in comparing him to Matthew Shepard, who was openly gay.
posted by hermitosis at 7:15 PM on November 18, 2010 [1 favorite]

null: because that's what the defense is going with - it's a classic case of blame the victim. "they had it coming because of xyz"
posted by Old'n'Busted at 7:15 PM on November 18, 2010 [1 favorite]

This is a hot button for me. I see young kids of elementary and school age going around using the adjective "gay" as a description for everything bad, and their ignorant school systems don't slam the door on that practice. We perpetuate this kind of ignorance by tolerating it where it begins. Let some kid start using the n-word on the playground, and see what happens. Either we're serious about stamping out this kind of prejudice, or we're not. Actions follow words, if we're serious.

As for the "gay panic" defense - any society that helps lead one to believe that a gay advance is worth killing for, is a sick society, period.
posted by Vibrissae at 7:16 PM on November 18, 2010 [11 favorites]

I can understand being mildly annoyed if someone with whom you're not interested in sexual relations with repeatedly makes advances. That doesn't, in any universe, excuse murdering the person. The only use for that information is to understand the motivation behind the crime, although I would bet that the vast majority of the time this "gay panic" shit is something made up after the fact.
posted by wierdo at 7:30 PM on November 18, 2010 [2 favorites]

Well, let's not be shy here.

The man, Hermilio Moralez, is charged with beating his subject to death and setting fire to his body. According to his claims, Wilkerson first approached him with the stick, and Moralez took it from him and beat him to death with hit, and then Moralez disposed of the body in a fire and disposed of other items in a dumpster in a second location. The body was found bound at the hands and feet, and Moralez also lied to officers about his identity as well as tried to take the weapon from an arresting officer.

There is no reason not to name the accused in a story like this.
posted by hippybear at 7:31 PM on November 18, 2010 [4 favorites]

null terminated: Why does this matter?

It might help determine whether it had anything to do with the motive of the murder, or is just an desperate excuse dreamed up after the fact.
posted by Mitrovarr at 7:33 PM on November 18, 2010 [1 favorite]

Why does this matter?

Because it determines whether there is a cause here...or just a douchebag lawyer trying a new defense just to get his name in the papers.
posted by hal_c_on at 7:35 PM on November 18, 2010

It actually doesn't matter whether the story is true -- at least not the advances part. Running with the premise that all the other details are true, there's no reason to keep hitting Wilkerson once Moralez has disarmed him. This version of the story makes Moralez remotely less unsympathetic, because apparently in it his own gay panic freakout led him to murder? So that's a tiny step up from completely motiveless murder, from sociopath to psychopath, but so what? Having a reason isn't the same thing as having a good reason.
posted by kittens for breakfast at 7:38 PM on November 18, 2010

Why does this matter?

Because it determines whether there is a cause here...

Um... why would someone hitting on someone else be "cause" for anything resembling the crime which is reported to happen?

Regardless of whether Wilkerson was hitting on Moralez or not, using gay panic as a "cause" for this or any crime is despicable. It's the equivalent of using the short-skirt defense for rape.
posted by hippybear at 7:39 PM on November 18, 2010 [2 favorites]

I wonder if these douchefucks who think "unwarranted sexual advances" is license to murder really understand the consequences of what would happen if the women who they clumsily hit on at bars took the idea to heart.
posted by auto-correct at 7:40 PM on November 18, 2010 [57 favorites]

is Gay Defense any different the the famous Twinkie Defense used several years ago?
posted by tustinrick at 7:47 PM on November 18, 2010

Oh Jesus. I am going to set on fire the next woman that hits on me. Sorry bro, straight panic.

(Note. I will not set anyone on fire and I am totally okay with heterosexuals as long as they don't shove it in my face. )
posted by munchingzombie at 7:51 PM on November 18, 2010 [7 favorites]

is Gay Defense any different the the famous Twinkie Defense used several years ago?

Yes, and no.

Houston = Gay Defense

San Francisco = Twinkie Defense

just a difference in style, mainly
posted by Vibrissae at 7:52 PM on November 18, 2010 [1 favorite]

I sincerely hope the gay panic defense won't work, but I'm not holding out any hope.

And for whatever it's worth, I read this story just shortly after coming across the following: the UN has apparently removed sexual orientation from its resolution condemning extra-judicial summary or arbitrary execution, and can't help thinking of one in light of the other.
posted by treepour at 8:08 PM on November 18, 2010 [1 favorite]

Look at what this thread has become!

I think the real difference is weather this is a bona fide hate crime or not. If Wilkerson really did come after him with a stick in order to make a pass at him, then we can have that media shitstorm. If not, we can just talk about a lying sociopath using the gay panic defense.

Maybe his attorney is using that defense to get his odious client put imprisoned while still collecting the fee.

_{Huh. "Bona fide hate crime." huh uhhuh huhuh..}
posted by clarknova at 8:16 PM on November 18, 2010

burning the body is an attempt to hide evidence. What could be hidden here? Perhaps that Wilkerson was the object of desire and the victim of sexual assault? That's more likely I think. Why else burn the body? So sad regardless.
posted by yesster at 8:20 PM on November 18, 2010

Remember, kids, what Nancy Reagan said, and 'just say no'.
posted by Capt. Renault at 8:23 PM on November 18, 2010

It's not remotely a new defense, having previously been floated for the murders of Lawrence King and Victor Manious, with a related defense for the murder Angie Zapata.

In all of these cases, the defense's story that McInerney, Scarborough, and Andrade were just momentary victims of irrational blind rage deeply stank. McInerney attempted to recruit classmates in a murder plot and planned his shooting before he arrived in school. Scarborough was a repeat offender with a history of mugging gay men for cash. Andrade spent three days with Zapata, including a traffic-court hearing at which Zapata's legal name was used.

This story similarly stinks, "but officer, I had no choice but to beat him to death on a perfectly deserted stretch of road, burn the body, and hide it. He tried to rape me."
posted by KirkJobSluder at 8:29 PM on November 18, 2010

Not sure what I think, but some commentors on the Towle Road page speculate that Moralez is at about the age where paranoid schizophrenia commonly emerges, which might account for all sorts of erratic behavior on his part.
posted by hermitosis at 8:30 PM on November 18, 2010

Wilkerson's hands and feet were bound when they found his burned body -- I know I always hogtie my lust-crazed attackers while scuffling to fend them off, don't you?
posted by FelliniBlank at 8:32 PM on November 18, 2010 [2 favorites]

It's the equivalent of using the short-skirt defense for rape.

So, really effective then.
posted by NoraReed at 8:47 PM on November 18, 2010 [2 favorites]

this thread has some dark snark in it.
posted by ServSci at 8:49 PM on November 18, 2010 [1 favorite]

For christ's sake, people. The Twinkie Defense is not what you think it is.
posted by electroboy at 9:05 PM on November 18, 2010 [4 favorites]

In terms of the gay panic defense, it's also worth mentioning the tragic Jenny Jones Show murder.
posted by dhammond at 10:20 PM on November 18, 2010

Outrage over the use of the gay panic defense is like outrage over a totally bogus civil suit against a company that sold a product that was incidentally involved in someone's injury: You can try it, and you're allowed to file the papers on it, but it's not going to work and it's obviously the last faint hope of a desperate person.

The gay panic defense has never worked to get someone off from their crime. In a few cases it has been used, and the defendant was found guilty, and arguably the gay panic defense was considered a mitigating factor (or used by the defense to argue that more serious premeditation didn't happen). In several cases it's been rejected outright because the defense couldn't show that there was any panic.

Yes, it's an odious defense, but it's not like people are getting away with murdering homosexuals by invoking it. It's throwing yourself on the mercies of the jurors' prejudices, and it's been, at best, marginally effective as a mitigating factor.

To echo electroboy, the Twinkie Defense is not "Twinkies made me do it." Dan White's lawyer argued that White was suffering from depression; as evidence he was depressed, his lawyer said that White was consuming junk food endlessly where before he'd been very physically fit and careful with his diet. Twinkies were evidence of depression, not a cause of his crime.
posted by fatbird at 11:21 PM on November 18, 2010 [1 favorite]

Why does this matter?

Because it determines whether there is a cause here

What?
posted by John Cohen at 11:33 PM on November 18, 2010

with a related defense for the murder Angie Zapata.

Yeah, the guy who murdered an old friend of mine tried it as well. Fucker's in jail now, though.
posted by ArmyOfKittens at 12:53 AM on November 19, 2010

The kid's bullshit 'gay panic' defense doesn't even register, being that it is completely without basis, and beside the point. I don't see this as a 'gay bashing' type of thing. You are fucked in the mind if you do something like this. It runs so much deeper than being just a gay issue. I see here the failure of a system to protect and educate. I pity the poor fuck who did this only a hair less than the kid who died.
posted by seagull.apollo at 12:55 AM on November 19, 2010

Maybe they could work out a deal like this: He's off the hook, but since he is obviously a danger to all gays, he is not allowed nearer than 100ft to any gay person, or else he'll go to jail.
Of course this might mean that he has to spend the rest of his life on a lonely island. Or possibly in Iran, where there are no gays (anymore).
posted by sour cream at 2:01 AM on November 19, 2010

Alternatively, they could just fry the motherfucker. (Not deathpenaltist)
posted by PeterMcDermott at 3:35 AM on November 19, 2010

is Gay Defense any different the the famous Twinkie Defense used several years ago?

More like an inept version of the Chewbacca Defence.
posted by Francis at 3:48 AM on November 19, 2010

I've never had a gay man hit on me.

Even though I'm straight, I feel cheated: I mean what, I'm not attractive enough?
posted by bwg at 5:18 AM on November 19, 2010

I don't know whether to be proud or disappointed in Mefites today. After 10 hours and 38 comments nobody has snarked in with a comment about the accused getting plenty of gay panic in prison if he is convicted. Congratulations/for shame Mefites!
posted by Daddy-O at 6:04 AM on November 19, 2010

My cynical take on this is that lawyers will encourage their clients to come up with any sort of defense that has a chance of getting that person off the hook and will coach said clients regarding same. If courts refuse to consider the knee-jerk insecurity response to perceived unwanted sexual advance as a justifiable cause for violence, then we'll see the ol' insanity defense being trotted out more often in its place.

Twinkies? Right. I 'scribe a lot of courtroom stuff. Amazing what lawyers will do and say, and what their clients will claim as a reasonable excuse. Even more amazing is how often it works.
posted by kinnakeet at 6:04 AM on November 19, 2010

The gay panic defense has never worked to get someone off from their crime.

Wait, what? Is there something about that case from last year I'm missing? I seem to recall a few others, too - esp. if you include "trans panic" defenses.
posted by mediareport at 6:22 AM on November 19, 2010 [1 favorite]

That "the gay panic defense has never worked" thing is really bugging me. In 1998, Stephen Bright was acquitted of murder and convicted of only third-degree misdemeanor assault for brutally beating Kenneth Brewer to death. He used a gay panic defense and got off with time served and 400 hours of community service. The case is discussed on p.518-521 in this article [pdf]. I'm sorry, but that defense sure as shit "worked." Stating otherwise is just playing with words.

Seriously, fatbird, it's not clear to me how can you say something like that. The gay panic defense may not always work, or even work most times it's invoked, but it damn well has worked quite well in more than one case. I'm sure I could find others if I didn't have to head out to work.
posted by mediareport at 6:34 AM on November 19, 2010 [3 favorites]

tustinrick: "is Gay Defense any different the the famous Twinkie Defense used several years ago?"

It must be the Gay Bandidos again.
posted by jquinby at 6:37 AM on November 19, 2010

After 10 hours and 38 comments nobody has snarked in with a comment about the accused getting plenty of gay panic in prison if he is convicted.

I for one am very grateful for that.
posted by hermitosis at 6:41 AM on November 19, 2010 [3 favorites]

As mentioned above, Scarborough successfully used gay panic to get the jury down to Voluntary Manslaughter.

But a good chunk of the objection to gay panic and other victim-blaming defenses is they portray the victim. The battery/homicide is presented as merely disproportionate to the offensive actions of the victims. Probably the low point of this was the chorus of, "yeah, shooting him in the back of the head was wrong, but Lawrence King shouldn't have been so femme."
posted by KirkJobSluder at 6:46 AM on November 19, 2010

My cynical take on this is that lawyers will encourage their clients to come up with any sort of defense that has a chance of getting that person off the hook and will coach said clients regarding same.

If your client wants a trial, you have to give it to them, and you have to present any defense that's available. It's not like some lawyer was sitting in his basement and said "Gay panic! That's genius, now I'll be rich and famous." They had a tough case with a client who wanted a trial and didn't have much in the way of other defenses, so they tried something they thought might work. If you think that this defense is a problem, it's not the lawyer's fault, it's the fault of whoever is buying it.

Wait, what? Is there something about that case from last year I'm missing?

That article is baffling because it claims that the case was a "gay panic" defense, but the fact pattern makes it look like plain vanilla self defense. Note this line:

"at which point Biedermann says he passed out on Hauser's couch--only to be awoken later by his host menacing him with a 14-inch sword, and threatening to sexually assault him. Biedermann claims Hauser succeeded in locking a grip around his neck, and then tried to stab him in the stomach with the 16-inch dagger"

If someone tries to sexually assault/stab you, you are (sometimes) allowed to use (some type of) force against them. Now, maybe that's not what actually happened, but if it did happen then the defense is self defense, not "gay panic." Honestly, you'd need to read a transcript of the trial to know what the defense theory of the case actually was.
posted by Bulgaroktonos at 6:48 AM on November 19, 2010 [1 favorite]

After 10 hours and 38 comments nobody has snarked in with a comment about the accused getting plenty of gay panic in prison if he is convicted.

Yeah, actually....wow. That's gotta be a record. Either way, definitely a feature, not a bug.

I can't believe it's 2010 and we're still talking about "gay panic," or that "the UN has apparently removed sexual orientation from its resolution condemning extra-judicial summary or arbitrary execution," or that we're even talking about homo- (or non-hetero, better) sexuality as an issue at all. The right wing is going to forever trying to drag this country, and the planet, back to the dark ages.

As far as women killing men who hit on them, man, I'd love to send that to the DA to use in trial...I'm in a fairly rough/blue collar line of work, and some of the treatment of women at the hands of people I'm otherwise well-acquainted and friendly with shocks me. After a day or two of working with some of these mokes I'M ready to kill them myself. I mean, literally 50-100 times a day, some women get it from multiple guys on the crew. I can't even imagine what even walking to work is like for these poor women.
posted by nevercalm at 6:57 AM on November 19, 2010

nobody has snarked in with a comment about the accused getting plenty of gay panic in prison if he is convicted.

We've been crystal clear that that sort of thing doesn't fly around here. Now if people could stop predicting/anticipating it, we could stop reading about it entirely perhaps.
posted by jessamyn at 7:39 AM on November 19, 2010 [1 favorite]

Seriously, fatbird, it's not clear to me how can you say something like that.

In neither of the cases you cite is the attacker's sexual orientation used as the cause of panic by the defense. Biedermann was facing a sword and dagger and a potential rape/sexual assalt. In the case of Bright:

Bright’s attorney, Deputy Public Defender Jack Tonaki, did not argue that his client’s fear of sexual assault was somehow worse because his attacker was a man. [emphasis mine]

Bright's attorney actually argued that a man in a situation of sexual assault can feel the same degree of panic at the prospect of sexual assault as a woman does.

If "gay panic defense" now has a wider meaning than the classic example of arguing diminished capacity from panic caused by the victim being gay, then I'll back off of "never". But my point remains that blaming the victim's orientation for the attacker's panic is still a last-ditch, all-hope-is-lost defense that's not worth getting worked up about because it doesn't work.
posted by fatbird at 7:52 AM on November 19, 2010

Conspicuously absent from the HuffPo article on Biedermann is whether or not the defense actually argued "gay panic", rather than vanilla self-defense (leaving the juror to fill in the gay part). Reading a few other articles on it, that appears to be what happened.
posted by fatbird at 8:12 AM on November 19, 2010

If your client wants a trial, you have to give it to them, and you have to present any defense that's available.

You know, I'm curious if this is true.

We got any lawyers in the house? If a defense attorney in this case "neglected" to portray the victim as a disgusting faggot who was just asking for a beating, would that be a violation of professional ethics?
posted by nebulawindphone at 10:06 AM on November 19, 2010

fatbird: that's not worth getting worked up about because it doesn't work.

As previously mentioned, it worked for Scarborough.

Anyway, I think the fact that a highly-paid professional in full view of the public is suggesting that torture and murder is an understandable reaction to encountering a gay person is plenty enough to get worked up about.
posted by Zozo at 12:03 PM on November 19, 2010

How about: if you murder or assault someone and claim "gay panic" in your defense, then you automatically get a "hate crime" enhancement added to your indictment.
posted by phliar at 1:39 PM on November 19, 2010

For christ's sake, people. The Twinkie Defense is not what you think it is.

Just because a wikipedia page says the defense didn't play up the sugar angle (and they do admit it was "mentioned in passing") doesn't mean jurors weren't affected by it.

This story by a journalist who was at the trial makes it sound like "the twinkie defense" is not a complete misnomer.
posted by mdn at 2:35 PM on November 19, 2010

(leaving the juror to fill in the gay part)

Just like the lawyer in the Bright case let the jury "fill in the gay part." We're really just dancing around here. The whole point of the gay panic defense is to make it seem like an attack against a gay person coming on to you is simple self-defense.
posted by mediareport at 4:02 PM on November 19, 2010

The whole point of the gay panic defense is to make it seem like an attack against a gay person coming on to you is simple self-defense.

But then you're not being fair if you lump in a case where someone claims to have been threatened with a dagger. His defense was that he was in mortal danger, not that someone came on to him.
posted by palliser at 7:58 PM on December 12, 2010