In early 2019, a few states made efforts to ban what has been called the “gay panic defense” or the “trans panic defense” in violent crimes, including murder.

What is the “gay panic defense” and the “trans panic defense”?
The “gay panic defense” and the “trans panic defense” are legal strategies in which a defense attorney will use of a victim’s sexual orientation or gender identity as justification for violent crime, claiming the defendant was scared or provoked. According to NBC News:

Using the strategy, a defense attorney will suggest her client wasn’t to blame for his actions — the victim is the real culprit, because of her actual or perceived sexual orientation or gender identity.

While the gay or trans panic isn’t really used on its own, it’s been employed in about half of all US states as part of claims of self-defense, of insanity or that the defendant was “reasonably” provoked to violence — and it’s resulted in lesser charges and sentences for perpetrators of violent hate crimes.

About half of all US states?!
A 2016 report by the Williams Institute at the UCLA School of Law cited court decisions discussing the gay and trans panic defenses from 23 states:  Arizona, California, Florida, Georgia, Kansas, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Nebraska, New Jersey, Ohio, Pennsylvania, Tennessee, Texas, Wisconsin, and Wyoming.

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How does the defense get presented?
The Williams Institute’s analysis notes that “no state recognizes gay and trans panic defenses as freestanding defenses under their respective penal codes. Rather, defendants have used concepts of gay and trans panic in three different ways in order to reduce a murder charge to manslaughter or to justifiable homicide.” Those three ways:

  1. Defense theory of provocation, arguing “that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity was a sufficiently provocative act that drove them to kill in the heat of passion”
  2. Defense theory of diminished capacity, arguing “that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity caused them to have a temporary mental breakdown, driving them to kill”
  3. Theory of self-defense, arguing that they had a “reasonable belief that they were in immediate danger of serious bodily harm based on the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity”

What are some examples of the gay panic defense or the trans panic defense being used?
NBC News reported that the panic defense has been used multiple times in the United States:

  • In 1995, Jonathan Schmitz was charged with first-degree murder for killing his secret admirer, Scott Amedure, after Amedure confessed his affection for Schmitz on “The Jenny Jones Show”; Schmitz was ultimately found guilty of second-degree murder instead
  • In 2002, men beat and strangled Gwen Araujo to death claimed they had been shocked “beyond reason” when they learned she was transgender
  • In 2009, an Illinois man was acquitted of first-degree murder after he claimed he stabbed his neighbor 61 times for making a move on him
  • In 2010, a man was convicted of manslaughter for smashing a radio into a man’s head, stabbing the man repeatedly and then lighting his body on fire, claiming this was provoked by the victim dropping his pants and asking for a sex act to be performed on him
  • In 2016, James Dixon pleaded guilty to first-degree manslaughter and was sentenced to 12 years of prison for brutally beating Islan Nettles, a transgender woman with whom he had flirted
  • In 2018, a Texas man was given 10 years of probation for stabbing and killing his friend who leaned in for a kiss

There was at least one time when it was not permitted to be used in a trial. The Associated Press reported that when Aaron McKinney and Russell Henderson were on trial for the murder of Matthew Shepard, McKinney’s lawyers had wanted to argue that Shepard put his hand on McKinney’s leg, causing him to fly into a rage. But the judge prohibited the “gay panic” defense in that trial.

Wow. And this is legal in every state?
As of the spring of 2019, it’s legal in every state in the US except California, Illinois, and Rhode Island, Vice News reported.

But there are efforts to ban it in other states?
The Los Alamos Daily Post reported that in March of 2019, New Mexico state senators voted 40-0 for Senate Bill 159, which would prohibit defendants in cases of first-degree murder and serious violent crimes from using the “gay and transgender panic defense.” Earlier in the year, NBC News reported that New York legislators were mulling a similar bill. The National LGBT Bar Association’s website indicates similar bills were introduced in 2019 in Nevada, Texas, Washington, and Connecticut.

In 2018, Senator Edward Markey and Representative Joe Kennedy, both Massachusetts Democrats, introduced The Gay and Trans Panic Defense Prohibition Act of 2018. This legislation would have banned the panic defense in federal court.

Federal court, but not in state courts?
Correct. Kennedy told VICE News that because the bill would only ban the gay panic defense and trans panic defense in federal courts, states should continue efforts to ban the defenses:

Our legislation would only make an effect on the federal level… A lot of these crimes are going to take place at the state level. So it’s critically important that other states update their policies.

NBC News reported that Kennedy said “murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it is a hate crime.”

And there is a federal law about hate crimes, right?
Barack Obama signed The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act into law in October 2009. As the Associated Press reported, “the act expanded the 1969 federal hate-crime law to include crimes based on a victim’s sexual orientation, gender identity or disability.” According to the Department of Justice, the law…

creates a new federal criminal law which criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when:

(1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or

(2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

But the law doesn’t directly mention panic defense. The National LGBT Bar Association states on its website that these defenses are “uniquely used to justify violent crimes against LGBTQ+ individuals” in a way that aren’t used to justify crimes against other minorities:

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.

In a statement reported by NBC News, Markey expressed similar sentiments, saying “Gay and trans panic legal defenses reflect an irrational fear and bigotry toward the LGBTQ community and corrode the legitimacy of federal prosecutions. These defenses must be prohibited to ensure that all Americans are treated with dignity and humanity in our justice system.”

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