"Misrepresentation of Facts in the Struggle for Queer Acceptance"
by Bootdog
Nearly everyone is familiar with the phrase "Twinkie defense." Essentially a variation on "The Devil made me do it." The concept of the Twinkie defense has its roots in the Dan White murder trial of the late Seventies.
On November 27th, 1978, Dan White, a former member of the San Francisco Board of Supervisors, broke into SF City Hall and shot and killed SF Mayor George Moscone and Supervisor Harvey Milk, the first openly gay elected official in the United States.
At his trial, White's attorney submitted an ultimately successful "diminished capacity" defense. Diminished capacity is a legal concept sort of like "not guilty by reason on insanity" Lite. Essentially, diminished capacity states that circumstances surrounding the crime reduced or eliminated the defendant's ability to premeditate the acts of which they are accused. When successful, diminished capacity reduces the severity of the conviction rather than secures an acquittal. Diminished capacity is often suggested as a mitigating factor in cases where the accused is intoxicated at the time of the crime. Defense attorneys attempted to use it in this way during the Matthew Shephard murder case (unsuccessfully, because such a defense is prohibited under Wyoming law).
In White's case, the diminished capacity defense reduced his conviction from first degree murder, with a possible penalty of life in prison, to voluntary manslaughter, which carried a maximum of seven years in prison.
As part of the diminished capacity defense, White's lawyers claimed that White was suffering from undiagnosed depression. Expert testimony by psychiatrist Martin Blinder offered as evidence of White's depression the fact that White, a former police officer who had been very health-conscious, had begun eating Hostess Twinkies regularly. To emphasize, White eating Twinkies was offered as evidence of his depression, not as a cause of his depression (It is worth noting that Blinder did mention the possibility that increased sugar intake could have some effect on White's level of depression, it was a parenthetical remark which did not make up a significant part of White's defense).
The essence of White's defense was lost on the newspapers and hence, the public, particularly the San Francisco gay community. Reaction to the defense and to White's subsequent voluntary manslaughter conviction was intense, culminating in the White Night Riot on the evening of White's conviction on May 21st, 1979.
In the nearly twenty-five years following, the phrase "Twinkie defense" has become synonymous with a defense of "Drugs/Alcohol/Dehydration/Hypoglycemia/Gay Panic made me do it." This is not to say that White's sentence of seven years in prison was not an egregious miscarriage of justice. Californians were so disgusted with the outcome of White's case, as well as other similar, albeit lower-profile, cases, that in 1982 an overwhelming majority of Californians voted to forbid the further use of the diminished capacity defense.
Part of the problem with White's defense is that the notion that he was unable to premeditate the murders flies in the face of his actions leading up to the murder (avoiding metal detectors and Moscone's bodyguard, bringing extra ammunition, confronting Moscone about getting his supervisor job back before shooting him, administering a coup de grace to Moscone, and tracking Milk down across the building before killing him). The concept of diminished capacity was replaced by that of diminished actuality—that is, the defense cannot argue that the defendant was incapable of premeditating the crime; they can only argue that the defendant didn't premeditate, which carries a higher standard of proof. As well, sufficiently believable expert testimony from a psychologist or psychiatrist was able to establish diminished capacity; diminished actuality cannot be established by expert testimony; it must be argued and sufficiently proven by the defense attorney (although expert testimony can be used to support a diminished actuality assertion).
In the end, Dan White was paroled on January 6th, 1984, having served a little more than 5 years of his sentence. Almost two years later, White committed suicide by asphyxiation. It's worth noting that the occasion of White's death was what prompted me to think about the Twinkie Defense. The Cove Diner on Castro Street in San Francisco has its walls covered with photos of various people, both famous and less-famous. In for breakfast one day, I noticed a shot of five VERY happy guys, all brandishing newspapers with the headline of White's suicide showing. I realize that emotions ran very high on this subject, but it just seems TACKY for people to celebrate the death of anyone.
"That's a specious argument, Dad." "Thanks, Honey."
That was a lot of background, wasn't it. Let's move on to my point.
What's my problem with the Twinkie Defense? It's a little hard to express. I am frustrated by the widespread use of the phrase "Twinkie defense" mainly because the lore surrounding the case has got a significant number of people believing that Dan White killed Harvey Milk, said, "The Twinkies made me do it," and was let off scot free. For example, the following lines are from "Homophobia" by the singing duo Romanovsky and Philips:
There was a man who shot our first gay supervisor dead
The Twinkies made him do it; that's what his attorney said
He could have gotten life but he got seven years instead
Which sounds a lot like blatant homophobia to me.
As an aside, I can't STAND the word homophobia as it is generally used. Outside of it's questionable implications of a clinical "fear of homosexuals" (holy gay panic defense, Batman!), it's usually applied as a wimpy "don't want to offend anyone" milquetoasty epithet, You really want people to change their point of view and/or behavior? Call it bigotry. If it really is, the person should be easily shamed; if it isn't, then you'll hopefully stop crying "Wolf" every time someone hurts your widdle feewings. But that's a rant for another day.
My problem is that using specious facts (Dan White claimed that the Twinkies made him do it) to support a proposition (the murder of queer folk is not considered to be as serious as the murder of straight folk) makes the person(s) supporting the proposition look intellectually dishonest when the facts are learned. In fact, specious arguments like the supposed Dan White Twinkie defense scenario provide ammunition to opponents of queer equal rights to point at such things as proof that we, as a class, are a) intellectually dishonest and b) shrill stooges of the "Homosexual Agenda" [11:00, dismantle heterosexual family tradition; 11:15, herd all Christians into Prada sweatshops; 11:30, step aerobics]
"But," you say, "our misrepresentation of the Dan White case [which was unintentional, by the way," you snidely add,] "is miniscule compared to the lies told about queers by the Religious Right."
I realize that the Twinkie defense issue is largely due to gross misreporting by the media during the trial, but it has become canon for most queer activists, not to mention everyday folks, and all of this is because nobody really did any legwork in learning about the topic. They took what the heard and repeated it as true, without any independent validation. I realize that this is a bit of a cheap shot but: isn't that what Rush Limbaugh listeners (so-called "dittoheads") do? Again, I know: cheap shot, but my point stands.
Another example is the oft-quoted statistic that queer teenagers are three times as likely to attempt suicide than straight teens. There is an enormous amount of debate regarding the validity of this statistic. I've glanced through the study (Homosexualities: a study of diversity among men and women, Bell, A.P. and Weinberg, M.S., Simon and Schuster, 1978) which generated the statistic originally (as far as I can tell; this is one convoluted topic, believe you me), and I'm a little disinclined to really put a lot of faith into the conclusions, for a number of reasons (the methods used to obtain subjects, assumptions regarding the percentage of homosexuality and bisexuality among males, and data gathering methods, to name three). I'm not a scientist or a statistician, but I did do some work on research design in graduate school, and...I'm a little iffy on the study.
There is, of course, a significant number of studies that have been done in the ensuing 25 years that also purport to show overwhelmingly higher suicide rates among queer folk, but, absent a free week to spend every waking hour in a university library going through journals, I'm not going to cover those.
I need to make another quick aside to point out that, for the most part, a single study, regardless of it's subject or findings, will generally not represent a definitive answer on anything but a) self-evident generalities (e.g. "People enjoy eating sweet foods") or b) esoterically narrow facts (e.g. "First-born children raised by parents who don't speak English as their first language begin to show reading competency on average three weeks earlier than other children.") [Please note that I made that up to prove a point. I will personally hunt down anyone who quotes that as an actual statistic and force them to read every issue of the Journal of the American Optoelectronic Society from cover to cover until their eyes fall out of their sockets.]
So why do I bring this study up? At first, I was under the impression that such a study had never been performed. Then, upon going over dozens of web sites, I determined something much more relevant: nobody discusses these studies without having come to a conclusion a priori. On the web, all of the sites that consider the studies reliable are generally gay-friendly, if not activist. Those who refute the studies are all right-wing sites which presuppose a "Homosexual Agenda" [1:30, return kinky porn tapes; 2:00, proselytize to class of second graders; 3:00, vodka tonics with Anton LaVey]. Ultimately, I came to the conclusion that, absent commentary from a source that I consider properly impartial (there are a few) the only way to develop an opinion on the statistic is to read the entire study. Fuck that, I've got a life to live. Those line dances aren't going to do themselves, you know. I'll go with "Enh" on that statistic's validity and move on.
My point is: It's tempting to use questionable statistics to argue one's case. Most people are uncomfortable with statistics, and people trust the Men of Science who analyze such things to make proper decisions based on those results. That's fine for deciding how much fluoride should be added to the water, but swaying people's opinions based on (potentially) specious data is simply a bad idea. Backlash sucks, particularly when it's backlash caused by people feeling foolish for falling for such things.
The Truth is Out There
Beyond that, real egregious miscarriages of justice happen and incontrovertible statistical evidence in support of queer equality exists. The problem here is that by using the outre examples above, the solid facts seem a little...titchy. Compare the many many cases of children being taken away from their perfectly competent, loving gay parent and being put into the custody of their vindictive straight parent whose main intent in life is to stick it to their ex, all of which is abetted by judges who believe that a queer parent is less desirable than an unemployed meth-addicted she-wolf. It happens constantly, but because it's generally not an "obviously" bigoted attitude (i.e., it's cloaked in vague references to a parent's ability to provide and care for a child properly), no one pays attention.
I'm not scolding, here. I know that our lives are complex enough without the continual bemoaning of a custody case 2500 miles away, but I do question the value of motivating people to take up queer causes through the use of specious facts and data.
My philosophy is never to disparage behavior without offering some form of alternate behavior. In this case, I think the best thing to do is ignore the Twinkie Defense and queer teen suicide statistics and instead find a real-world example of gross miscarriages of justice and/or underlying social bigotry. Research it a little, get the facts, and rile people up with that. It's much more effective, particularly since you're going to catch your opponents unawares.
Finally, I'm not much of a complainer. I don't do much agitating for change, generally, because I feel that my skills are better applied elsewhere while the real activists do their thing. So I want everyone to understand that I don't think that the best thing for every queer person to do is become a societal scold, pointing out the frailties and foibles of modern society vis a vis equality for queer folk. Unless, of course, you like that sort of thing. Activism, like kinky sex, is best left to those who have an affinity for it.
[I can't resist:] Twinkie Linkies!
http://www.ohnonews.com/twinkie.html
An encapsulation of the Moscone/Milk/White affair. The site's a good read,
but what an...odd...theme.
http://telenaut.com/danwhite/
A series of drawings by an AP reporter from Dan White's 1979 trial. Not to
disparage, but a good half of these look like early drafts of a Pathetic
Geek Story.
http://www.snopes.com/legal/twinkie.htm
The Urban Legend Reference Page on the Twinkie Defense.
http://www.straightdope.com/mailbag/mdimcapacity.html
The Straight Dope on the Twinkie Defense. Note exactly how far the perception
of the Twinkie Defense can drift.
http://www.virtualcity.com/youthsuicide/gbsuicide1.htm#22
A short abstract of the Bell and Weinberg study.
http://www.himh.org.au/response-ability/resource/Module10.PDF
Nicely balanced didactic article on the issues surrounding evaluating queer
youth suicide rates.
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