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Knowing the Body
2004 Final Web Report
The Gay Panic Defense uses the word panic to convey a sense of abruptness in the perpetrators' thought process during the moment they carry out the criminal behavior. The Oxford English Dictionary defines panic as "a sudden uncontrollable fear or anxiety." The word panic projects the illusion that the criminal actions taken by gay-bashers do not accurately represent their usual behavior, therefore creating a space for arguing that gay-bashers are good people, like most other heterosexuals who occasionally experience a bout of misjudgment. Ironically, the word panic originates from the Greek god Pan, who was noted for causing terror. Gay panic implies that causing terror in violence is due to forgivable bouts of misjudgment. The defense's language suggests a lack of both premeditation and cognitive participation brought about by the unexpected fright. Sociologists use panic to refer to irrational group behaviors, such as those arising from riot mentality. This statute barrows language from social science for the purpose of linking gay-bashing to an academically accepted explanation for seemingly illogical group behavior. Defense attornies often argue that the victim's sexual advancement on the defendants who are already extrememly insecure about their own heterosexual orientation gave their precarious sanity just enough of a nudge to tip over and hence produce irrational violent behavior. The defense also assumes that homosexuality is such a terror as to uproot even something so supposedly stable as heterosexuality. If gay-bashing is a symptom of a mental "disease" then the defendents must be suffering patients instead of knowing criminals. By pathologizing gay-bashing, the medical and social jargon legitimizes it through institutional recognition.
To facilitate exploring a specific anti-gay defense, I locate this statute within its homophobic political background. Peter Nardi criticizes the state's anti-gay politics in speech.
"Highly visible attacks on gays are made with regularity by influential politicians and political commentators. These attacks by Senators and Congressmen much as Jesse Helms . . . continue a long tradition in which gays and lesbians have served as scapegoats and targets of opportunity" (Nardi, 424).
Despite the differences between sexual orientation and race, gay bashing in the political arena takes shape in a way that's comparable to race baiting. The political system is setup such that traditionally in order for a southern candidate to win an election, he must "out-nigger" his opponent. In contemporary conservative areas, in order to win, a candidate must "out-faggot" his opponent. For instance, Senator Jesse Helms made a career out of verbally bashing gays. Rewarded by votes, elected officials bash the collective gay body. Public servants' homophobic language nurtures an anti-gay social atmosphere in the political arena that seeps into non-political landscapes. An anti-gay social atmosphere created space for private citizens to see Shepard as a piece opportunity and encouraged McKinney and Henderson to become agents of the state. In this anti-gay environment McKinney and Henderson lynched Shepard.
According to Richard Friend homophobia is an extension of heterosexism, which is grounded in sexism. Friend defines homophobia as "the fear and hatred of homosexuality in oneself and in others and emerges as a result of heterosexism" (Friend, 211) and heterosexism as "prejudice against homosexuality that is maintained by a pervasive set of societal institutions that sanction and promote this ideology" (Friend, 211) The author links prejudice against gays to prejudice against women. Within contemporary American patriarchy, heterosexual white men stand at the top of the hierarchy. The relationship between patriarchy and homophobia exists within contextual fabrics unique to each society. In contemporary America, homophobia enhances patriarchy. Apparent heterosexual, young white men participate as the typical gay-bashers in order to maintain a privileged masculinity in patriarchy. (Sedgwick 1985).
On October 6, 1998 Aaron McKinney and Russel Henderson crossed paths in life with Mathew Shepard. McKinney and Henderson came from poor rural backgrounds, earned criminal records, lived in trailer parks and fixed roofs for a living. Shepard came from a more privileged family background, studying as a student at the University of Wyoming. Shepard frequented Fireside, a college bar where McKinney and Henderson also happened be drinking that particular night. In a casual chat, Shepard told McKinney and Henderson that he was gay. The three left the bar together because Shepard believed that McKinney and Henderson were driving him home (Kaufman 2001).
In the truck McKinney began hitting Shepard, approximately three times with his fist and six times with his pistol. Later in court, McKinney would testify that he assaulted Shepard who according to him, placed his hand on his leg, seemed to be reaching for his balls, and thus triggered his "Gay Panic Defense" which the law stipulates as a mechanism in response to the sexual advancement made by gays. This statute reveals homophobia's lawful place in institutionalized patriarchy. After severely beating Shepard in the moving truck Henderson tied him onto a fence on the lonely mountains of Laramie. McKinney pistol whipped Shepard several more times in an attempt to later prevent police involvement when Shepard managed to read the truck's license plate at McKinney's orders. McKinney and Henderson left Shepard to die midair in the freezing night of the wilderness (Kaufman 2001).
Eighteen hours later a biker discovered a deathly Shepard after initially mistaking his five foot one inch, fatally injured body for a scarecrow. The biker reported the crime to police and the first officer who arrived at the scene later described Shepard's face completely covered in dried blood except for the bloodless streaks where his flowing tears ran. EMT rushed a barely breathing Shepard to the Ivinson Hospital emergency room where doctors decided that the patient needed to be transferred to Poudre Valley Hospital for neurosurgery. Ironically Dr. Cantway, the physician who treated Shepard also treated McKinney twenty minutes prior to Shepard's arrival two rooms down the hall (Kaufman 2001).
In an interview for The Laramie Project, McKinney's girlfriend Kristin Price told writers that the two men went into the bathroom where they planned to put on a gay pretense in order to lead Shepard into the truck and rob him as punishment for "coming on to straight people." Price described the punishment as a lesson that the two men intended to teach Shepard. Yet is the audience to the violence limited to the body on which it takes place, in this case Shepard's? (Kaufman 2001)
Meeting in the men's bathroom, McKinney and Henderson discussed Shepard's offense against patriarchy, decided he deserved punishment, and agreed to the method of delivering the penalty. McKinney and Henderson became the penal system. I stress not only the meeting's premeditated nature but also its clandestine quality. I compare the secrecy of the attackers' plans to Foucault's description of Europe's legal system in 1670. Foucault writes:
". . . the entire criminal procedure, right up to the sentence, remained secret: that is to say, opaque, not only to the public but also to the accused himself. It took place without him, or at lest without his having any knowledge either of the charges or of the evidence. In the order of criminal justice, knowledge was the absolute privilege of the prosecution. The preliminary investigation was carried out 'as diligently and secretly as may be'. . ." (Foucault 35)
Foucault sheds light on knowledge's secrecy and privacy during the preparation for and execution of the condemned man's trial. In a similar vein, McKinney and Henderson met in the covert chamber of the men's room in preparation for Shepard's trial. From observing and talking to Shepard in the bar, they gathered evidence against him about his sexual culpability. Similar to an accused party in Foucault's work, Shepard was kept ignorant of the charges brought against him. He did not know he was being surveilled, analyzed and monitored. McKinney and Henderson acted also as prosecutors who first investigated him and then deliberated behind closed door on the privileged information in Shepard's trail. In secrecy the agents decided on a ruling from which Shepard was deliberately kept ignorant. Without Shepard's knowledge, McKinney and Henderson used the evidence to judge him guilty of the crime of endangerment to patriarchy through homosexuality. Shepard has been unknowingly sentenced to die. No jury partook in the verdict's deliberation since McKinney and Henderson acted as the entire criminal justice system. As agents of the state, Mckinney and Henderson played the roles of prosecutors, juries and judges. Shepard did not know that from this point onward, he would be treated as a convicted subject on death role. Hence, we can understand the secret meeting in the men's room as a preliminary investigation, a preliminary hearing and a trial, all in one.
In order to make the punishment possible, McKinney and Henderson must first capture the convict. The agents planned and subsequently carried out a gay performance to convince Shepard that, like him, they were gay. The performance's successful outcome depended upon the undercover agents' knowledge about Shepard's understanding of safety and danger. They knew what it took to make an openly gay man feel safe and staged their front convincingly. The agents had access to this knowledge of which Shepard was not aware during the arresting process. Shepard did not know the agents would soon imprison him in the truck. The undercover agents took him into custody with torture in mind. The agents separated the act of torturing Shepard from the act of displaying the tortured body. Although many gay-bashing incidents take place in public spaces because the attackers intend to carry out physical punishment with participating or witnessing crowds, Shepard's incident occurred in private because his attackers planned a private punishment. Considering that the two men could have instead attempted to start a bar fight with Shepard or engaged him in other types of physical violence in public space but did not, I point out that they intended to move the victim from a public space into a private space. The agents lured the condemned man out of the bar and into a truck with the aim of enclosing him in a private space where the punishment initiated. It was not the agents' intention to perform a militantly exaggerated version of masculinity in front of a crowd for their own identities' sake.
The attackers planned to inflict pain on the condemned man's body without a crowd's judging gaze and interference. Whenever one attacker hit Shepard in the car, a mere audience of one witnessed the punishment. Even if we conceptualize the private punishment as a performance, it could be only a kind of personal theater entertaining the idea of an ever-stable masculine patriarchy to a maximum audience of two. The co-conspirator remained the only audience member who had access to take any kind of intervention on Shepard's body during the punishment in the truck. Granted the co-conspirator's participation in the preparation of condemning Shepard, a co-conspirator posed the least threat to an attacker's freedom to punish. Enclosed within the moving vehicle's metal interior, the agents enjoyed the opportunity to punishing Shepard in a clandestine torture chamber.
In private McKinney and Henderson tortured Shepard. Carefully premeditated, their torture was far from an uncontrolled beating. Foucault describes the act of torturing in Discipline and Punish:
"Torture rests on a whole qualitative art of pain. But there is more to it: this production of pain is regulated. Torture correlates the type of corporal effect, the quality, intensity, duration of pain, with the gravity of the crime, the person of the criminal, the rank of his victims. There is a legal code of pain; when it involves torture, punishment does not fall upon the body indiscriminately or equally; it is calculated . . ." (Foucault 34).
Foucault stresses that torture does not manifest from people's mindless, unrestrained urge to inflict spontaneous violence; rather people carry out torture through thoughtful, deliberate procedures. McKinney and Henderson delayed their punishment until Shepard sat between them in the truck, which proved that the violence's precise timing could not have been coincidental. Despite carrying a gun, McKinney avoided shooting Shepard one time, point blank to immediately kill him, and instead used his gun for repeated pistol whipping to inflict continuous pain. In the act of torturing Shepard, the agents expressed their delicate discrimination between causing death and pain. The agents had not in mind an abrupt death, since quickness would spoil torture's whole purpose. A fatal bullet would have caused only a moment's gesture in pain whereas repeated pistol whipping produced prolonged pain. Fired in milliseconds, a fatal bullet would have spared Shepard the gradation of pain that the pistol whipping made available. The bullet concentrated all its intensity into a split second, whereas the butt spread out its intensity by delivering powerful blow separately. By preferring one end of the pistol over another, McKinney executed torture with full Foucaultian weight.
Once the three arrived at the mountains, the judicially decided location, the agents tied Shepard above ground, onto a fence and continued to pistol whip him before abandoning their victim raised midair. The gradation of pain induced first by being pistol whipped to then by being tied midair reflects the attackers' judgment of the severity of Shepard's crime against patriarchy. In the torture, the agents took into careful consideration the criminal and the crime. Fully cognizant that Shepard was still alive at the fence, the agents intended to extend the pain initially inflicted on his body for the ensuing hours. Any time during the next eighteen hours, the agents had the opportunity of reporting Shepard's location through an anonymous tip to local hospitals; however, they choose to maintain the seemingly indefinite agony on a gay man's body. The agents kept Shepard's body alive for the purpose of suffering. The agents carefully formulated the graduated intensity in pain into anti-gay punishment. In private the agents tortured Shepard for the sake of punishing his body in a way they deemed representative of his crime against patriarchy.
The act of injuring a gay body was private whereas the subsequent exhibition of that injured body was public. Once the agents had completed the torture, they didn't need to be in closed proximity to the condemned. The physical distance represented the agents allowing the injuries to independently make full impact. The injuries spoke for themselves. The act of leaving Shepard's injured body on the fence constituted a public act since McKinney and Henderson raised it for the sake of spectacle. Expressing display's function in producing a show of injury, Foucault writes:
". . . torture, forms part of a ritual. It is an element in the liturgy of punishment and meets two demands: it must mark the victim: it is intended, either by the scar it leave on the body, or by the spectacle that accompanies it, to brand the victim with infamy. . . men will remember public exhibition, the pillory, torture and pain duly observed. From the point of view of the law that imposes it, public torture and execution must be spectacular, it must be seen by almost as its triumph (Foucault 34).
Foucault stresses that the punished body must be marked and identified to a larger audience than to the injured audience himself. Unlike secret murderers, the agents did not burry Shepard in a makeshift grave, a body of water or an abandoned building. Nor did they cut up, incinerate, trash or induce the disappearance of Shepard's injured body. Through raising the body, the agents used Shepard's injuries to mark for display the painful experience that they produced in private. During the punishment McKinney and Henderson violently made clear to Shepard a gay body's invaluable status; during the subsequent spectacle, they announced boldly to the world the same message.
The pain amplified and multiplied through a spectacle as death's image played and replayed in audiences' minds. The injured body's raised height suggested arrogance in the attackers' presumptions about a gay man's worthlessness. The display not only elongated Shepard's punishment, but also transformed a finite episode of suffering into an infinite resonance of disturbance. Gay bashing entails not only the damage or destruction of homosexual bodies but more importantly the injury's public display. The "lesson" that McKinney's girlfriend described was taught not only to Shepard but also to the public, including the body's discoverer, transporter, caretaker, Laramie residents and news consumers about the crime. Knowledge of the violence inflicted on a gay man's body resonated outwards from its site of occurrence as learners mushroomed in numbers. Using Shepard's body to demonstrate to his mind that certain heterosexuals did not welcome a homosexual's sexual advances was the private act of punishing one individual. Using Shepard's body to demonstrate to the minds of local and distant communities that certain heterosexuals did not welcome a homosexual's sexual advances was the public act of intimidating gays and people who care about them in general. Shepard's private punishment ended the moment his body died whereupon the gay community's punishment began as knowledge of one of its member's torture continued to produce disruptions in people's lives. The objectified injured body subsequently generated social injury in bodies of people outside of the initial punishment.
McKinney and Henderson utilized one body's injury in order to teach entire bodies of people to conform to heterosexism. Through injuring a gay man's body and exhibiting that injury, McKinney and Henderson struggled to maintain the heterosexual privilege of communicating sexual advances with only other heterosexuals and not with homosexuals. In conservative spaces sexual initiation remained men's preoccupations. Since in these spaces contemporary American men initiated sexual interest to women, the turf that McKinney and Henderson were defending was the territory reserved for heterosexual men to "hit on" women.
Hitting on a woman does not necessarily equal to expressing sexual interest for further sexual contact. Rather than being a means to an end, that of showing sexual interest for the purpose of obtaining more sexual activity, "hitting on" constituted an end in and of itself. "Hitting on" a woman could simply entail visually enjoying her body. To "hit on" a woman means to visually penetrate her, "checking her out" in a way that serves the observer's interests above all else. The right to look is a pleasure traditionally reserved for men. The collective right to look makes the male gaze powerful and socially intimidating, without a comparable female gaze that could match in degree. There is no female equivalent of the male gaze. The right to look translates to the ability to objectify female human bodies. The male gaze successfully intimidates because it can make object what was subject. Shepard's attackers saw or believed they'd seen that they are being hit on as if they were women. Thus the turf that McKinney and Henderson wanted to protect was masculine as well as heterosexual. To Shepard's attackers, patriarchy was the right of men to "hit on" women while remaining safe from not being "hit on" by anyone else, especially another man.
Feeling like feminized objects, the attackers objectified Shepard's body the way warriors would collect and exhibit the fallen enemy's skull. The agents forced the condemned's body to play a passive role in conquest. In extension to this analogy the state produced its own domestic warriors who enjoyed showing off injured gay bodies as souvenirs. The commonality between Shepard's attackers and warriors lied in the practice of physical bodies' dehumanization, a process that began during punishment and proceeded through objectification. The agents asserted the difference between human and non-human. The once willful, self-contained human body submitted to the will of the conquerors who traumatically broke its skin-barrier. Having lost its most basic biological functions to sustain itself, the injured body ceased to live for its own sake since it now lived as the conquerors' article.
As agents of the state the attackers triumphed the condemned man because there was no contest as to who'd won. Foucault argues that rituals involving excess violence inflicted on the body produce a splendor.
"The very excess of the violence employed is one of the elements of its glory. . . it is the very ceremonial of justice being expressed in all its force. . . Justice pursues the body beyond all possible pain" (Foucault 34).
The excess violence made impossible for spectators to understand the event as a duel rather than a death sentence because it erased any signs of a noteworthy struggle between the agents and the condemned. The violence's excess, Shepard's blood covered face and neurologically destroyed head, inextricably embedded in people's memories the attackers' zealous hostility towards gays. The excess violence marked Shepard's utter failure to launch a crucial defense as much as it reminded the gay community of its own vulnerability to attacks by hostile homophobes protected by the state. Marking the body with infamy, the injuries told a story of injustice, loss, and defeat. The scars on Shepard's body transferred onto the collective gay body after his biological body had died. According to the McKinney, Shepard's sexual advancement in the truck triggered his gay panic; however, the agents had tricked the victim into the truck prior to the supposed trigger. Hence whether or not the attackers felt more offended by Shepard's behavior in the truck, they had already resolved on torture. The agents intended to punish Shepard through orchestrated, explosive physical violence, which the state legitimates using medical and academic institutions. Within this context, the injured body produced truth about the relative power between the agents and the condemned, and about state-sanctioned murders against gays.
Within a homophobic political arena, lawmakers write a "gay panic" statute that sets up the social atmosphere for private citizens to act as agents of the state in gay-bashing in order to maintain patriarchy. The government supports an anti-gay atmosphere by permitting the medical and legal institutions to use the "homosexual panic" defense in the criminal justice system. As practiced in contemporary America, patriarchy uses homophobia as structural support. Patriarchy, imbued with hierarchical meanings, employs torture as a form a punishment. Shepard's private punishment and subsequent public display demonstrate the patriarch's ritualistic exercise of power. The struggles within many societies begin and end within the terrain of the human body, which though has no referential meaning becomes embodied by meaning within context that ultimately has a stake in the body. Participating in the transformation of the private into the public, the human body is both an object in which one lives and a site of political articulation.
1. Foucault, Michel. 1977. Discipline and punish. New York: Random house.
2. Friend, Richard A. 1993. "Choices, not closets: heterosexism and homophobia in schools." Beyond Silenced voices. Albany: State University of New York Press. 209-235.
3. Kaufman, Moises. 2001. The Laramie Project. New York: First Vintage Books.
4. Nardi, Peter, Bolton, Ralph. 1991. "Gay bashing: violence and aggression against gay men and lesbians." Social perspective in lesbian and gay studies. New York: Routledge. 412-433.
5. Sedgwick, Eve Kosofsky. 1985. Between Men. New York: Columbia University Press.
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