The Gay Panic Defense Is Alive And Well In Texas ... and Forty-Seven Other States

James Miller was a police officer for the Austin Police Department, but then the 69-year-old man retired. He began playing guitar, playing at a local bar, and trying to put together a jazz band.  That’s when he met 32-year-old David Spencer, a recent transplant from LA, and a saxophone player also in search of a band.

The two men became friends, played music together and then, in September 2015, it went wrong. After a night of music and drinking at Spencer's house, Miller claims the younger man tried to kiss him:

“We were playing back and forth and everything, and I just let him know—Hey, I'm not gay. We been playing. We're musicians and all that kind of stuff, but I'm not a gay guy. Then it seemed like everything was all right, and everything was fine. When I got ready to go - it seemed like [expletive] just started happening."

James Miller, right, was eight inches shorter than Daniel Spencer; he weighed less than Daniel Spencer; he was a bit older than David Spencer. He claims Spencer became angry after Miller rejected his sexual advances and moved forward in an aggressive manner while holding a drinking glass.

Miller took out a knife and stabbed Spencer two times. A few hours later, hours later, he showed up at a police station, without so much as a scratch on him, and confessed:

“I think I killed someone … I stabbed him."

He was charged with murder, but three years later, at trial, James Miller claimed the killing was done in self-defense because he was in a "gay panic" after Spencer hit on him.

Yes, in 2018. The “gay panic” defense is still a legal defense in every single state in this country except California and Illinois. And in Miller's case it worked; he was found not guilty of murder or manslaughter—even though he stabbed a man to death—but was convicted of criminally negligent homicide.

Still, he will not spend a day in prison. He will spend six months in jail, complete 100 hours of community service, pay $11,000 in restitution to Spencer's family and use a portable alcohol monitoring service for at least a year. He will also be on probation for a decade.

And all because, he says, a gay man tried to kiss him. Sadly, we’ll never know if that was the case because David Spencer, left, is dead.

Spencer’s mother, Marsha Spencer told the jury:

“I have a huge hole in my heart. Something’s wrong in the world when you lose your child before you go. I’m tortured by the thought of how Daniel died and I’m tortured by the fact that he suffered and that he was alone when he died. It’s a loss that cuts deeply.”

But the jury didn’t care about Marsha Spencer, about the hole in her heart, about her murdered son, as much as they cared about the story of a gay man who may, may, have tried to kiss a straight man and was stabbed to death for it. To them, that’s deserving of death.

Here are some questions I would have asked had I been on that jury …

Why did a former police officer wait hours to report the crime?

And then why did he turn himself in to his former co-workers?

Why did Miller have a knife at a jam session with a friend?

Why, when a man hits on another man, is it okay to kill that man?

Lastly, if I, as a gay man, go out with a female friend and she makes a pass at me and tries to kiss me, can I stab her to death and then offer up a “straight panic” defense?

In America, in most of America, in 2018, you can still murder a gay man and get away with it simply by saying he tried to kiss you. And no one will question that or be able to question the victim.

Independent