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June 2006

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Wayne Healy v. Luis Spencer

By Michael Bronski
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T here is a new trend in how gay and lesbian lawyers and legal scholars are fighting for gay rights. To a large degree this legal tactic entails the use gay and lesbian history to help judges and jurors better  understand not only the often homophobic reality that has shaped the past, but also how our basic ideas and institutions about sex, proscription, children, love, romance, and work have been constructed. Often what began as scholarly research has become a solid legal argument that can change unjust laws.  

The first important case that relied on gay history was Lawrence v. Texas, which was argued in 2002. Lawrence was brought to the Supreme Court by the New York based Lambda Legal Defense and Education Fund. Along with the basic arguments—that sodomy laws were unconstitutional because they violated the right to privacy and were discriminatory—they also presented an amicus brief by such historians as George Chauncey, Nancy F. Cott, John D’Emilio, Estelle B. Freedman, John Howard, Mark D. Jordan, and Elizabeth Lapovsky Kennedy, among others. 

These historians set out to prove that “no consistent historical practice” singles out same-sex behavior as “sodomy” and that “the governmental policy of classifying and discriminating against certain citizens on the basis of their homosexual status is an unprecedented project of the twentieth century.” By examining biblical sources, as well as U.S. history from colonial times to the present, they demonstrated how prohibitions against certain types of sexual activity were never universal or consistently regarded as immoral or illegal. They showed that sodomy laws, throughout what is usually called “western culture,” were really a grab bag of prohibitions far more reflective of historical, social, religious, and economic moments than a universally understood and accepted prohibition. 

The defense of sodomy laws has always been that samesex sexual activity (also called “the detestable crime against nature” in many traditional statutes) is immoral and wrong and that prohibiting it is a safeguard against sexual anarchy and the destruction of personal integrity and family. The argument that sodomy laws are not universal, and to prove this historically, was a radical departure for many traditionalist thinkers. Justice Kennedy substantially referenced the historians’ brief in his decision to find Texas’s sodomy laws unconstitutional. 

Historians also played a large part in Massachusetts’s Supreme Judicial Court (SJC) decision in Goodrich v. Department of Public Health in 2004, which stated that it was discriminatory and unconstitutional to ban same-sex marriages. In Goodrich , historians Chauncey, Cott, and others argued that marriage has been an evolving institution and has existed throughout European and U.S. history in a wide variety of forms, only some of them having to do with romantic love or raising children. This may seem obvious—the arranged marriages of medieval and renaissance Europe differ from companionate marriage—but antigay marriage rhetoric continues to asssert that marriage has always been a religious, divinely ordained union between one man and one woman for the purpose of raising children. Forget about the Hebrew Bible’s complicated system of concubines and polygamy (not to mention really easy divorce for men) and the fact that marriage has been one of the most protean social institutions throughout history. When the SJC wrote Goodrich, they relied on the historians’ brief and their decision to end the prohibition against samesex marriage was predicated on the idea that the civil institution of marriage had always changed and this was simply the next step. 

Recently in Massachusetts another case has surfaced in which the defense is relying on gay history to come to the rescue. On May 5, 2006 the United States Court of Appeals for the First Circuit heard arguments in Wayne Blyth Healy v. Luis Spencer . If Wendy Sibbison, Healy’s lawyer, is successful it will mean the end of a 25-year nightmare for her client. 

This  nightmare began on August 8, 1980 when Wayne Healy’s brother-in-law Richard Chalue was found dead at about 1:30 AM in his Holyoke, Massachusetts apartment. Because he was in his bedroom with his pants down around his knees and his hands tied behind his back, the police assumed, even before Healy was a suspect, that this was “a homosexual related homicide.” Healy had visited Chalue at 9:00 PM that evening for a few minutes and told police that he had then returned to the home he shared with George Roy by 12:10 AM. 

Although there was no ill will between the two men, no physical evidence linking Healy to the crime, and no proof that Chalue was gay or bisexual, Holyoke police pieced together a scenario in which, for some unexplained reason, Healy had violently murdered Chalue during a sexual tryst. 

This fanciful plot began to seem more reasonable after it was discovered that Healy, a licensed practical nurse and registered Emergency Medical Technician, did not tell the police that he had visited two gay bars after seeing Chalue and before arriving home, leading them to believe he was at Chalue’s apartment longer than he had stated. This theory was bolstered by cigarette butts allegedly left by Healy in Chalue’s apartment (which the defense claimed were planted there by the police after the defendant left them at the police station during questioning). 

During the trial, John F. St. Clair, the assistant district attorney for Hampden County, introduced such circumstantial evidence as: a small two-day-old cut on the defendant’s hand, Chalue’s girlfriend’s statement that their sex life was dwindling, the contested cigarette butts, Healy’s concealing his visits to the gay bars, and posed photographs of Chalue’s corpse that emphasized his naked buttocks. When faced with the defense’s clear exculpatory evidence that Healy had no blood on his clothes, St. Clair countered that the defendant had been naked when he committed the murder. 

What was not introduced in the trial were the findings of Dr. H. Paul Wakefield, the chief pathologist at Holyoke Hospital who performed the autopsy on Richard Chaule’s body. Wakefield found no evidence of any sexual activity. Also withheld was Wakefield’s memo that the Holyoke police were convinced that Chalue’s murder was connected to dangerous and deviant gay sex even before Healy was a suspect. In fact, the most persuasive argument the prosecution had was that Healy was a homosexual and that, well, homosexuals are violent deviants who murder their sexual partners. 

Even without Wakefield’s pertinent evidence, it took 5 days and more than 30 hours to reach a guilty verdict and the deliberations were so stormy that even the prosecution asked for a mistrial. The judge considered the evidence “so delicately balanced that even in a small matter, if the jury found out about it, could tip the balance.” In the end, it was St. Clair’s homosexual psychopath narrative that persuaded the jury. In his closing arguments he showed photos of the naked, brutalized Chalue and asked, “What kind of activity was going on in that bedroom? Ask yourself that. Don’t leave your common sense at home.” 

O n April 8, 1981 Wayne Healy was convicted of brutally murdering his brother-in-law and was sentenced to life without parole. Healy’s conviction was upheld in a series of appeals to state courts, including the Supreme Judicial Court. Finally, on January 18, 2005, U.S. District Court Judge Michael A. Posner ruled that Healy should be released or retried because state prosecutors used a blatantly homophobic strategy that emphasized a “homosexual element to the murder.” 

To bolster Healy’s argument Boston-based Gay and Lesbian Advocates and Defenders (GLAD) filed an amicus brief that detailed how entrenched cultural and political attitudes of the early 1980s set the stage for Healy’s conviction. GLAD’s brief uncovered a mostly hidden history of how gay people were historically conceptualized as dangerous criminals. This included the infamous “sexual psychopath” laws passed in the post-war years that existed in more than half of the states that allowed gay men to be arrested and labeled “sexual psychopaths” simply for being homosexual. More than 26 states and the District of Columbia passed these laws and they were essentially used to catch anyone who did not conform to accepted sexual standards, especially homosexuals. Often these laws allowed not only for arrests for behavior, but also for incarceration in mental hospitals for people (usually men) who were targeted as potential criminals. 

The GLAD brief also tracked articles in magazines that described how homosexuality could lead to “drug addiction, burglary, sadism, and even murder” and how, especially for heterosexual men, “disgust” was an appropriate psychological response to homosexuality (nine of the jurors in Healy’s case were male). The brief illustrated with legal and social examples how the very idea that gay sex was dangerous permeated U.S. culture up to the 1980s and how this was prejudicial. It also discussed the films Deliverance (1972) and Cruising (1980) as promoting images of homosexual sex as equivalent to rape and murder. Relying on academic historians and theorists, the GLAD brief delineated how legal decisions are inextricably linked to the cultures in which they were formulated. 

What distinguishes the amicus brief in the Healy case from those in Lawrence and Goodrich is that, while the latter cases relied on uncovering a distinct social construction of an institution—sodomy and marriage—GLAD’s historical argument explicated how entrenched homophobia made a guilty verdict a foregone conclusion in a case with almost no hard evidence. But before we get too excited about how history can change the present, Gary Buseck, GLAD’s legal director, expressed some somber thoughts. While he noted that Healy’s latest appeal had a good chance of vindicating him, vicious gay bashing is still with us. 

A s of this writing, Wayne Healy remains in prison. Although Judge Posner called for his release, the state attorney general’s office filed, and was granted, an emergency motion to overturn the decision. The success of Healy’s First Circuit Appeal—they will announce their decision sometime later in 2006—depends on the court’s deciding that the suppression of the Wakefield evidence played an important role in the guilty verdict and in understanding how U.S. justice is as much a product of ingrained homophobia as it is the rule of law.

Michael Bronski is the author of Pulp Friction (St. Martin's ). 
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