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11 Am. U. J. Gender Soc. Pol'y & L. 101 (2002-2003)
The Complex Uses of Sexual Orientation in Criminal Court

handle is hein.journals/ajgsp11 and id is 113 raw text is: THE COMPLEX USES OF SEXUAL ORIENTATION IN CRIMINAL COURT ABBE SMITH* INTRODUCTION: CHANGING TIMES OR NOT Times may or may not be changing for gay people' in the criminal justice system- and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about. Signs of positive change include the recent high profile Matthew Shepard2 and Diane Whipple' cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country.4 It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, white and college educated- wholly innocent victims. 5 Professor of Law and Associate Director, Criminal Justice Clinic and E. Barrett Prettyman Fellowship Program, Georgetown University Law Center. With thanks to Sally J. Greenberg for helpful suggestions, and Angela J. Davis and Michael Shortnacy for inviting me to the symposium. 1. Not to unduly simplify an increasingly complex sexual landscape, but with the intent of lessening the reader's burden, the term gay people here includes gay, lesbian, bisexual, transgendered and transsexual people. 2. See Frank Rich, Summer of Matthew Shepard, N.Y. TIMES, July 3, 1999, at All (indicating that the murder of Matthew Shephard prompted a wave of positive acceptance of homosexuality in popular and political culture). 3. See Anna Gorman, Mauling Death Creates an Activist Law: To Honor Her Late Partner, Sharon Smith Presses Rights Issues for Gays and Lesbians, L.A. TIMES, Mar. 18, 2002, at B1 (noting the mauling death of Diane Whipple led her surviving partner to press for the right for same-sex partners to sue in wrongful death actions). 4. Both cases received national press coverage. There have already been three television movies about the Shepard case. See Michael Medved, TV Focuses on One 'Hate Crime,' Forgets Another, USA TODAY, Jan. 31, 2001, at 15A (stating that violence against gays has received increased television coverage). 5. Neither could be described as flamboyantly gay. Neither was said to be predatory or promiscuous. Although there was a suggestion that Shepard had made a sexual advance on one of his assailants, this never seemed credible and was largely kept from the jury. See Michael Janofsky, Judge Rejects 'Gay Panic' As Defense in Murder Case, N.Y. TIMES, Nov. 2, 1999, at A14 (noting that the concept of the gay panic

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