Early American versions of a homosexual-advances defence

Abstract Homicide suspects in the United States have sometimes maintained, and prosecutors and juries have sometimes agreed, that their crimes were less serious or were justified entirely if they were responding to homosexual advances by their victims. Studies of such a defence’s use have, with a single exception from 1868, been confined to the period after 1920. A newspaper search, modelled on one used to explore another supposed ‘unwritten law’, identifies nine additional instances between the Civil War and 1914. In the most notable of them, the murder of Joseph Frye in Boston in 1879, such advances were all but explicitly recognized as constituting legal provocation that mitigated the crime. In this and other cases, a credible invocation of the defence seems to have lightened the killer’s punishment when any was imposed.