Last edited: February 14, 2005

Gay Panic Defense Could Get Boost from Kentucky Bill

Southern Voice, February 1, 2001
Atlanta, GA

By Tamsen Love

FRANKFORT, Ky. — A controversial bill proposed in the Kentucky legislature last month has been strongly criticized by gay and civil liberties groups over fears that it might allow the use of deadly force to repel non-violent same-sex advances.

The measure, from state Rep. Bob Damron, a Democrat, would allow people to use deadly force to protect themselves from criminal homicide, burglary, robbery and "deviate sexual intercourse," as well as "an attempt to commit any [these] offenses."

"Deviate sexual intercourse" is the legal term used in Kentucky to refer to oral and anal sex. Civil rights advocates have suggested that the measure, if passed into law, could be used to support a "gay panic" defense similar to the one rejected by a Wyoming judge in the Matthew Shepard case.

Under current state law, residents of Kentucky may use deadly force to protect themselves from "death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat."

Damron said his legislative effort is not taking aim at gays, and even suggested that the bill would protect gay men, a group he said is at higher risk for sexual attack because of their sexual orientation.

"If I thought this bill would validate the gay panic defense, I would withdraw it immediately," Damron said. "I’m not promoting a bill that would give someone the right to kill someone because of his lifestyle."

The "gay panic" defense is not based on the concept of self-defense, but on the idea that defendants have a mental problem that causes them to feel uncontrollable rage when someone makes a gay advance, and thus are not responsible for their actions.

But there is concern that Damron’s bill would broaden the state’s self-defense statute to allow deadly force against anyone making a non-violent same-sex advance.

Jeff Vessels, executive director of the ACLU of Kentucky, noted that the current self-defense statute specifies "sexual intercourse compelled by force or threat," while the proposed bill merely adds "deviate sexual intercourse" without stating that it has to be by force. The distinction might allow someone to use deadly force in the event of a non-violent gay pass, he said.

Damron said opponents of the bill, along with the media, have taken the words of the statute out of context and "blown the issue out of proportion." He said that the bill does not draw any such distinction, and that the law would only provide a defense in the case of violent, forcible attempts at sodomy.

Vessels was less sure. "If that is his intent, great, but the language needs to be changed to reflect that," he said.

Damron argued that the language in the bill will be refined during the legislative process.

"This is the first pitch of the game. There is a lot more revision to come," he said.

Damron, a conservative lawmaker who successfully sponsored a bill giving residents of Kentucky the right to carry concealed weapons, is not above "taking a gratuitous jab at gays and lesbians," said state Rep. Kathy Stein, a Democrat on the House Judiciary Committee, which will consider the legislation.

Damron agreed that he is "pro-gun," but denied that he has an anti-gay agenda.

"I don’t get involved in these kinds of issues," he said.

The impetus for the bill is to update the state’s self defense law and make it consistent with similar laws in nearby states, Damron said. The current self-defense statute does not allow people to use deadly force to repel violent forcible sodomy, he said.

"The statute as it is now clearly omits deviate sexual intercourse," Damron said. "Someone might not be able to claim self-defense" in cases of attempted forcible sodomy.

In fact, Damron insisted the bill offers increased protection for gay men, who he said are more likely to be victims of forcible sodomy than heterosexual men. If gays oppose his bill, "they are welcome to come down to the legislature and say they don’t want any protection," Damron said.

Stein said the reasoning behind the legislative proposal is somewhat disingenuous.

"You can already defend yourself using deadly force if you think you are going to be raped," she said. "A court isn’t going to split hairs in a situation involving forcible sodomy."

Damron acknowledged that some of the negative reaction to the bill may stem from the use of the term "deviate sexual intercourse" to describe oral and anal sex. The term appears in other Kentucky statutes, so Damron said he used it in his proposal.

"That’s the way the law is drafted in this state," he said. "We have to work with it."

Stein said this might just be a conservative effort to "cast light on the fact that we still define homosexual acts as ‘deviate sexual intercourse.’" She said conservatives like Damron haven’t accepted that the state’s sodomy law was held unconstitutional in 1992.

Damron says he would probably not support efforts to remove the term "deviate sexual intercourse" from the Kentucky code, because it would be a "major undertaking" and "expensive."

While Kentucky legislators are grappling with these issues, the bill seems to be garnering support among some Kentucky citizens who view it primarily as an anti-crime bill.

"I’ve had people call me from all over the state saying they support extending the self-defense law," Damron said. "Gay rights people are the only ones raising the ‘deviate sexual intercourse’ issue."

Vessels said that when he appeared on a call-in radio show in Lexington to discuss the bill, most callers "saw this as a freedom to carry weapons issue, and saw our opposition as an attempt to infringe on this right."

But despite some popular support, the bill has little chance of success in the current legislative session because of an abbreviated, five-week session. Major new legislation will be difficult to pass, political pundits said.

"This is not a burning, deep desire for me," Damron said. "Passing this bill in the short session would require a lot of work and explanation, and I’m not going to devote those resources to it. I have other priorities."

Damron added that he would probably re-introduce the bill next year, but even then, he said, "I am not going to push it hard. It just needs to be looked at and discussed."

Vessels remains cautious.

"We are always concerned when we see bills that would treat people differently, "he said. "We take all such bills seriously, because you never know what might happen. We are going to keep a close eye on this one."

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