In 2015, newly obtained juror statements revealed a layer of jury bias that was previously unexposed, leading Rhines’ attorneys to argue that he’s entitled to a new penalty phase hearing.
According to the affidavits, one juror had called the defendant “that SOB queer.” A second worried that if Rhines were sentenced to life in prison, he could be a “sexual threat to other inmates and take advantage of other young men.” A third juror said “there was lots of discussion of homosexuality” and that, as a South Dakota farming community, “there was a lot of disgust.” Perhaps the most shocking comment came when a juror said during deliberations that, if Rhines were given life in prison instead of death, since he was a gay man, “we’d be sending him where he wants to go.” If there was any doubt about it, the new evidence makes crystal clear that revolting beliefs about Rhines’ sexuality played a factor in the most serious decision that can be made about a human being’s life at the hands of the state: the decision to end it.
Rhines’ motions to have these statements admitted were denied in a series of petitions, with both the South Dakota Supreme Court and the U.S. Supreme Court declining to intervene. Rhines still has legal options to exhaust through the 8th Circuit Court of Appeals. But his latest rejected appeal undermines hopes that the courts would finally recognize homophobia as a clear form of discrimination in the jury room.
Jury deliberations are typically kept private. In 2017, however, the Supreme Court ruled in Peña-Rodriguez v. Colorado that if a juror has made “a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant,” the secrecy rule no longer applies. So far, courts have declined to apply that ruling’s protections to anti-LGBT bias, arguing that the history of racial bias in America creates “unique” circumstances that place it in a class of its own. But the NAACP itself submitted an amicus brief supporting Rhines’ motion for a new hearing, stating that it is “well aware of the unique role that race has played” in blocking equal treatment in the United States, but “just as the Constitution does not permit a person to be sentenced to death because of his race, it should not permit a person to be sentenced to death because of his sexual orientation.”
Attention in this case has understandably focused on whether jury bias should, under the Court’s 2017 ruling about “animus,” entitle the defendant to a new trial. But it’s crucial to recognize that Rhines’ trial was the second time he was utterly failed by a homophobic world, and the failure during the earlier period of his life may have had the graver impact on his life — as it certainly did on Schaeffer’s.
The rape that Rhines blamed himself for in an Army barracks took place in one of the most virulently anti-gay climates in American history: the U.S. military during the Vietnam War era. (Full disclosure: The history described here is based on my 20 years of primary and secondary research and is summarized in a report I wrote at the request of Rhines’ attorneys.) The persistent, inescapable experience of trauma suffered by gays and lesbians who donned the nation’s uniform was born of both official policy and the social norms of a viciously anti-gay culture that viewed gay people with disgust. Thousands of gay and lesbian military members were systematically purged from the ranks during this period; many were thrown into military prisons for having consensual same-sex relations.
Even those who did manage to avoid the clutches of military law still faced harassment, humiliation, and violence, including the constant threat of sexual assault, which was often perpetrated against those thought to be gay. The history of the era is replete with accounts of troops who, considered effeminate or gay, were derided as “fucking faggots,” blamed for slowing down a unit, and pummeled into submission as a way to “straighten out the queers.” It was too risky to report such abuse. Doing so could put victims at risk of further verbal or physical mistreatment, as well as investigation, exposure, separation, or prison — with consequences that would far outlast their military tenures.
The cumulative effect of all this festering anti-gay hostility was a poisonous and sometimes deadly atmosphere for gay and lesbian Americans serving their country, in which fear, distrust, and shame caused unimaginable stress and coping difficulties that could generate rage, substance abuse, and other destructive or risky behaviors. Recent research has shown that such stress has a deep, lasting, and even physical impact. A 2016 University of California study found that incidents of “minority stress” measurably increased the stress hormone cortisol in lesbian, gay, and bisexual subjects, thereby physically changing the brain. The findings suggest that stressors associated with life as a sexual minority can undercut physiological coping resources, impair judgment, and lead to a range of psychic health harms and destructive behaviors that can last a lifetime. A literature summary found numerous studies linking victimization among sexual minorities to mental health symptoms, including higher odds of depression and self-destructive behavior among those who were attacked or targeted for being LGBT.
The Supreme Court’s decision that racial bias is unacceptable in a courtroom should apply equally to bias on the basis of sexual orientation, which indisputably infected Rhines’ sentence. But Rhines’ case raises even bigger issues than jury bias. In taking Schaeffer’s life, Rhines committed an unpardonable offense. But the world repeatedly failed Rhines, and hence Schaeffer as well, creating harms that were avoidable and whose ongoing injuries — including the imminent prospect of Rhines’ demise — are also avoidable. Homophobia has proven deadly in the most literal sense, and it now threatens, needlessly, to take another life. When bigotry and neglect conspire to ruin so much for so many, what’s called for is mercy, rather than vengeance, for justice to be served.