The headline in a Michigan newspaper reported this as the court rejecting a "gay panic" defense, which may be overstating things slightly. Nonetheless, the decision by the Michigan Court of Appeals to uphold the verdict in People v. Cutler, No. 296078 (June 16, 2011)(unpublished disposition), is certainly welcome.
Dale Cutler was convicted of assault with intent to do great bodily harm and was sentenced as a habitual offender-fourth offense to serve 11-25 years and to make financial restitution to his victim, a man named Ryan Young. According to the trial record, Young's version of the story was that he was out at a bar with friends celebrating his birthday. Cutler, not an acquaintance, ended up sitting and drinking with him and they go friendly. Somebody dropped off Young and Cutler at Young's apartment. When they got inside, Young testified, he went into his bedroom to change and asked Cutler, "Did you want to do anything or did you just want to go to bed?" Cutler responded, "Yeah, I'm going to do something, you fucking faggot," and proceeded to beat up Young so badly that he ended up in the hospital, going in and out of consciousness for several days, his face bashed in from repeated hard punching.
Cutler's version is different, of course. He claimed that when they got back to the apartment, Young told him he could sleep in the bedroom and Young would crash on the couch. But Cutler claims the next thing he remembers after passing out on the bed, fully dressed, was waking up "to a very bad smell in my face, really bad alcohol. And there was wetness on my ear and my pants were unzipped and there was pressure in my genital area." Cutler claimed he was "in shock" to discover that Young had "his mouth on my neck" and "his hand in my pants." Cutler claims he shoved Young away, then Young tried to get on top of him and punched him in the face, to which Cutler responded with a struggle. "I think it was my momentum that threw him off the bed but we ended up rolling of 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 in his testimony that he was a "pretty good size guy" (the court later comments that Young is short and slightly built and Cutler is large), that he had been an unofficial bouncer at a bar and had trained for cage fights so he "did strike pretty hard." Cutler claimed that the hitting was "an explosive burst" and admitted that Young was unconscious on the ground when he left. He did not call for medical assistance. Evidently a neighbor found Young and took him to the hospital.
At trial, Cutler requested that the judge charge the jury on self defense. The trial judge rejected the request. After reviewing the evidence, the trial judge said, "It really is somewhat clear from his testimony later on that he did this because he was sexually molested by someone else and just as he never thought about reporting it, he was surprised that Mr. Young would report it. 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 jury then took 23 minutes to convict Cutler, who appealed claiming error in the denial of the self-defense charge. The court, per curiam, characterized this as a "close question," but then said, "However, having reviewed the record, and the trial court's reasoning for denying the instruction, because the testimony in the record supports the trial court's characterization of the evidence, and the question whether an instruction is applicable to the facts of the case is reviewed for an abuse of discretion, we find no abuse of discretion in the trial court's decision to deny the instruction."
The court noted the physical disparity between the short, slight Young and the big bruiser, Cutler. "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."
The other issue raised by Cutler on appeal had to do with a statement he made while in police custody that was admitted in evidence, from which the jury would learn that he had gotten into similar scrapes in the past. The court rejected the argument that the trial judge erred by admitting the statement, or that the failure of Cutler's defense attorney to get it excluded constituted ineffective representation.
Traditionally, the so-called "gay panic defense" has been that the defendant's psychological reaction to a sexual advance from another man resulted in involuntary violence on his part – that he lost control under circumstances that should be held to reduce or eliminate the culpability for the results of his conduct. I don't think that was quite the argument in this case. In any event, there are two versions of the facts to deal with. If the jury believed Young's testimony, Cutler engaged in an extremely violent response to a verbal solicitation that involved no physical aggression by Young. If Cutler's version was believed, Young's sexual assault of Cutler provoked a grossly disproportionate response. Either way, the trial court would not instruct the jury on self-defense in light of the circumstances, and the Court of Appeals found that refusal of the self-defense instruction was within the reasonable discretion of the trial court. A sexual solicitation, and even some sexual contact, does not give license for the kind of violent response documented in this case.