The LGBTQ+ Panic Defense Explained
What is the LGBTQ+ panic defense?
The LGBTQ+ panic defense is a legal strategy that seeks to blame a victim’s sexual orientation or gender identity/expression for a defendant’s violent actions, including murder. When this defense is used, the perpetrator is claiming that their victim’s sexual orientation or gender identity not only explains but excuses a loss of self-control. This defense is not a stand-alone defense and is often a legal tactic that is used to bolster other defenses.
History of the LGBTQ+ panic defense
The use of the LGBTQ+ panic defense traces back to the 1960s. Prior to 1973, homosexuality was still listed in the American Psychological Association's (APA) Diagnostic and Stastical Manual of Mental Disorders (DSM). [1] The widespread acceptance of this lead to the creation of the LGBTQ+ panic defense. Criminal defense attorneys began invoking this defense, then known as the gay or trans panic defense, in the 1960s. They would argue that an LGBTQ+ victim's unwanted sexual advance cause the defendant to enter a state of "homosexual panic," and kill the victim. [2]
Perhaps one of the most well-known cases in which the LGBTQ+ panic defense was used was that of Matthew Shepard. Shepard, who identified as gay, was a 21-year-old college student who was beaten to death by two men. [3] One of the men attempted to use the LGBTQ+ panic defnese by claiming that he was driven to temporary insansity by alleged sexual advances by Shepard. The defense was dismissed by the judge. Shepard's case received a lot of attention, which is unfortunately not afforded to transgender women of color who suffer the same fate. Not many cases end with a just outcome and can cause further pain for the families and community of the victims.
How is the LGBTQ+ defense used in court?
According to the LGBT Bar, a national association of lawyers, judges and other legal professionals, law students, activists, and affiliated lesbian, gay, bisexual, and transgender legal organizations, the LGBTQ+ panic defense has been traditionally used in three ways to reduce a charge of murder to manslaughter or justified homicide. [4]
1. 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 an LGBTQ+ 'panic.' This defense is based on an outdated psychological term, 'gay panic disorder,' which was debunked by the APA and removed from the DSM." [5]
2. Defense of provocation: "The defense of provocation allows a defendant to argue that the victim's proposition, sometimes teremd 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." [6]
3. 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 seriously bodily harm. In addition, LGBTQ+ 'panic' is often employed to justify violence when the victim's behavior falls short of the serious boidly 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." This denfese argues that a person's gender or sexual identity makes them more of a threat to safety. [7]
How successful is the LGBTQ+ panic defense?
According to the LGBT Bar, juries have acquitted many murderes because of the defense team's use of the LGBTQ+ panic defense. [8] In certain cases, a judge will instruct jurors not to engage in bias; however, the implicit homophobic and transphobic bias of hearing an LGBTQ+ panic defense can still have an impact on the jury's decision. Even in cases where the perpetrators are not acquitted as a result of the defense, a negative outcome can still occur. The jury may deadlock because of the inherent bias of the defense, leading to a hung jury and a mitigated sentence. This, the LGBT Bar explains, has the same effects as an acquittal: "Withholding justice from LGBTQ+ victims and sending the message that an LGBTQ+ person's life is not equal within a court of law." [9]
Legality of the LGBTQ+ panic defense
LGBTQ+ Panic Denfese Legislation Map
Pink: states that have banned the use of the LGBTQ+ panic defense
Blue: states in which legislation has been introduced
As of 2020, only 11 states have passed legislative bans on the use of the LGBTQ+ panic defense: Washington, California, Nevada, Colorado, Illinois, New York, Maine, New Jersey, Connecticut, Rhode Island, and Hawaii. [10] Legislation is currently being worked on in the District of Columbia, along with eight other states: New Mexico, Texas, Pennsylvania, Minnesota, Iowa, Wisconsin, Maryland, and Massachusetts [11]. However, that leaves 31 states in which this defense is legal, and no legislative action is in process to ban it. Currently, there is also no federal ban. However, Sen. Edward Markey (D-MA) and Congressman Joe Kennedy III (D-MA) have introduced bills in the United States Senate and House of Representatives that would prohibit the justification or mitigation of a violent offense based on the gender identity/expression or sexual orientation of a victim. [12] These bills would also require the Attorney General to submit an annual report to Congress listing crimes prosecuted in federal court that involved the LGBTQ+ community and were motivated by these factors. [13]
References:
[1] Jordan Blair Woods, Brad Sears and Christy Mallory, Model Legislation for Eliminating the Gay and Trans Panic Defenses, California: The Williams Institute, UCLA School of Law, 2016, https://williamsinstitute.law.ucla.edu/publications/model-leg-gay-trans-panic/
[2] Woods, Sears, and Mallory. Model Legislation
[3] Melanie Thernstrom, “The Crucifixion of Matthew Shepard,” Vanity Fair, January 8, 2014, https://www.vanityfair.com/news/1999/13/matthew-shepard-199903
[4] “LGBTQ+ Panic Defense,” The National LGBT Bar Association, Accessed November 1, 2020, https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/
[5], [6], [7], [8], [9] "LGBTQ+ Panic Defense."
[10] “LGBTQ+ ‘Panic’ Defense Legislation Map,” The National LGBT Bar Association, Accessed November 1, 2020, https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/gay-trans-panic-defense-legislation/
[11], [12], [13] "LGBTQ+ 'Panic' Defense Legislation Map."