Appeals court says 'gay panic' is not self-defense

A Michigan Court of Appeals has ruled that a man who attacked another man for unwanted sexual advances was rightly denied the use of "gay panic" as a defense strategy.
In the case People of the State of Michigan v. Dale Edward Cutler out of Montcalm County, Cutler and his victim, Ryan Young, told quite different stories of the incident that left Young badly beaten and missing teeth. The Appeals Court ruling explains the victim's version of events:
"In the early morning hours of June 11, 2009, Young was celebrating his birthday with friends at a local bar. Defendant was also at the bar. Young did not know defendant, but defendant joined Young and his friends at their table and defendant and Young talked and became acquainted. At about 3:30 a.m., Young and defendant were dropped off at Young's apartment. Young testified that he went into his bedroom to change and asked defendant: "Did you want to do anything or did you just want to go to bed," to which defendant responded: "Yeah, I'm going to do something you fucking faggot." Young testified that defendant choked him "so bad" that he "could not get away from him" and Young thought he was going to die because defendant "wouldn't get off me and just stop punching me." Young believed that he was fighting for his life. Young remembered defendant cutting off his oxygen until he passed out and that, when he came to, defendant was "just still bashing my face in" until he went unconscious again. Young believed defendant hit him "a good 30 times." According to Young, he never tried to touch defendant and neither of them ever fell asleep – except when Young went unconscious from the assault. Young testified that there was no discussion about flipping the television on or anything and that he believed this was because defendant had the assault already planned."
Cutler, however, told the court and jury that the two had gone to bed in the same bed, and he awoke to find Young with his hand in Cutler's pants. Culter is quoted by the Appeals Court as saying this during testimony:
"There was a struggle. I think it was my momentum that threw him off the bed but we ended up rolling off the bed and I ended up on top … I think the hold broke when we fell to the ground … Then I was on top then and I punched him … Probably about four or five (times) … Then I got up and left."
Cutler admitted to beating Young into unconsciousness in order to make sure he didn't do anything to prevent him from leaving.
A jury found Cutler guilty of assault with intent to great bodily harm and he was sentenced to 11 to 25 years in prison as a habitual offender.
At trial, Cutler sought to have his case reviewed under the self-defense standard which argues, according to a trial transcript, "the test for self-defense is whether a defendant honestly and reasonably believed that he was in danger of imminent death or serious bodily harm and used the amount of force it appeared immediately necessary to protect against that danger." That statement was made by the trial judge. After noting that Cutler was a cage fighter and the unofficial bouncer of the bar where the two men met, the trial judge concluded the analysis by denying the motion:
"In essence that he got what he deserved and I'm not seeing anything that indicates that Mr. Cutler was in any way in any fear of being assaulted or any type of harm that would justify what he did. The request is noted but it is denied."
The Appeals Court denied Cutler's appeal with the following statement:
"Under the circumstances, even accepting defendant's testimony that the victim sexually assaulted him and punched him once in the head, defendant cannot assert self-defense because he used excessive force to repel the attack he claims was mounted by the victim. Indeed, defendant did not try to merely subdue the victim, but punched the victim in the face hard enough to knock out teeth until the victim was unconscious. Given defendant's fight training and the size difference between him and the victim, this far exceeded the force necessary for defendant to defend himself … Thus, the trial court did not abuse its discretion in denying defendant's request for self-defense instruction because the evidence did not support it."
But one of the three judges on the panel did not concur with the majority opinion. Judges E. Thomas Fitzgerald and Stephen L. Borrello were the majority in the appeals ruling.
Judge Douglas Shapiro wrote a dissenting opinion in which he argued the majority had ruled the way it had because it did not believe Cutler's story. He wrote that the majority judges – as well as the trial judge – were not supposed to judge the credibility of the witness, that was "for a jury to decide."
"I would expect that the majority would not have affirmed had the defendant been a woman. In that circumstance, I think the majority would readily recognize the injustice in not even permitting the jury to consider self-defense because taking the defendant's testimony as true, there was an instant, in the dark, after falling from a bed, and after being assaulted, that she could have foregone any violence, gotten up off the floor and hopefully escaped before being hit or sexually assaulted again."
Blaming an excess of violence on a gay victim in such situations as the Cutler case outlines is referred to by gay legal experts as "gay panic defense." In essence, the assailant argues that the sexual come on by a gay person is so overwhelming and threatening the assailant believes he or she has to do significant physical harm or murder to the victim in order to protect himself. The defense was rejected in the high profile Wyoming murder case of Matthew Shepard in 1998. It has appeared in several Michigan cases in the past, but no defendant has asked for a self-defense directive for the jury hearing his or her case.