The LGBT Bar is proud to be leading the effort to ban gay and trans “panic” defenses across the country. In 2013, The American Bar Association unanimously approved a resolution – introduced by The Bar – calling for an end to these heinous defense arguments. Since then, the states of California, Illinois, Rhode Island, and Nevada have banned such defenses. Legislation is pending federally as well as in multiple states and the District of Columbia.
What is the gay and trans “panic” defense?
The gay and trans “panic” defense is a legal strategy which asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder. It is not a free standing defense to criminal liability, but rather a legal tactic which is used to bolster other defenses. When the defense is employed, the perpetrator claims that their victim’s sexual orientation or gender identity not only explains – but excuses – their loss of self-control and subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, these defenses imply that LGBTQ+ lives are worth less than others.
One of the most recognized cases that employed the gay “panic” defense was that of Matthew Shepard. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. The men attempted to use the gay “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today.
Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups?
“Panic” defenses are uniquely used to justify violent crimes against LGBTQ+ individuals. While other minority groups are undoubtedly also victims of hate crimes, there are few, if any, instances where a defendant claims that the revelation of someone’s race, religion, or other minority identification provoked them to violence. In contrast, gay and trans “panic” defenses frequently draw on unique stigmas about LGBTQ+ people, sexuality, and gender to justify horrific violence against gay and trans individuals.
How is the defense used in court?
Traditionally, the gay and trans “panic” defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide.
Defense of insanity or diminished capacity: The defendant alleges that a sexual proposition by the victim – due to their sexual orientation or gender identity – triggered a nervous breakdown in the defendant, causing a gay or transgender “panic.” This defense is based on an outdated psychological term, “gay panic” disorder, which was debunked by the American Psychiatric Association and removed from the DSM in 1973. Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up.
Defense of provocation: The defense of provocation allows a defendant to argue that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim. Defendants claiming a “provocative” advance stigmatize behavior which, on its own, is not illegal or harmful, but is only considered “provocative” when it comes from an LGBTQ+ individual.
Defense of self-defense: Defendants claim they believed that the victim, because of their sexual orientation or gender identity/expression, was about to cause the defendant serious bodily harm. This defense is offensive and harmful because it argues that a person’s gender or sexual identity makes them more of a threat to safety. In addition, gay and trans “panic” is often employed to justify violence when the victim’s behavior falls short of the serious bodily harm standard, or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed.