Explaining the Gay and Trans Panic Defense Strategy

As I grow up in America, it takes time and energy to actively teach myself about discrimination in and outside of my country. I’ve learned that my school systems and society never taught me about things that I should have known about, and I’m often ashamed to talk about historical events in large groups because of this. When it’s my own history though, such as LGBTQ+ history and women’s rights, I feel inherently connected and obliged to learn about my own culture and how I can continue to fight for a more just, inclusive, and loving society. So, when I heard about the LGBTQ+ “panic” defense, I’m ashamed to say that I was stunned. The LGBTQ+ “panic” defense is one of these things that I feel obliged and connected to learning about – I can’t justify a society not teaching about its full history. So, if you’re like me and you’ve never learned about the LGBTQ+ “panic” defense (or are looking for some hopefully thought-provoking reading this quarantine), read on and let us know what you think about this in the comments.

Please be made aware, some of the following may be difficult to read due to graphic descriptions of violence against LGBTQIA+ people, as well as general discrimination against the LGBTQIA+ community. 

The LGBTQ+ “panic” defense is a legal strategy that “asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction” (LGBT Bar). This defense includes murder but is not limited to it. This defense comes from a legal doctrine from sixteenth century England, but it is still being used in many courts. The LGBTQ+ “panic” defense supports a defendant’s claim that the victim’s actions caused a “sudden departure from rational judgment […] allowing a ‘heat of passion’ murder” or sometimes, an act of aggression. Now that was a lot that I just said, so I’m going to break it down. This “panic” defense is a legal strategy to be used in addition to another claim. If an LGBTQ+ person is murdered, the murderer could claim that the murder was provoked by the victim’s sexual orientation or gender identity, and that made the defendant suddenly unable to be rational, thus resulting in murder. Under this defense for centuries, courts judged if a situation was provoking enough to justify a homicidal response in a previously “reasonable” person. To state the obvious, this is a completely degrading legal strategy towards the victim, as it continues to perpetuate that LGBTQIA+ people are predators and that our sexuality or gender identity is a justification for violence against us (New York Times). 

If the LGBTQ+ “panic” defense is used in court and it is believed, the perpetrator’s crime – and ultimately, sentence – could be reduced, such as from murder to manslaughter. There are often 3 ways for it to mitigate a case of murder. 

  • Defense of insanity or diminished capacity

This is when the LGBTQ+ panic defense is used to allege that a sexual proposition by the victim was the source of the defendant’s “panic,” thus resulting in the victim’s death (or assault, etc). This is based off of an outdated psychological term “gay panic disorder.” This was debunked and removed from the DSM in 1973 by the American Psychiatric Association, but it still exists in our laws as a legal tactic.

  • Defense of provocation

If the defendant uses the LGBTQ+ panic defense this way, it means that they are arguing that the victim’s proposition was “provocative” enough to induce violence, and it was sometimes coined a “non-violent” sexual advance.

  • Defense of self defense

This is when the defendant is claiming that the victim was going to cause them serious harm, because of the victim’s own sexual identity or gender expression.

LGBT Bar

Now while this legal tactic is entirely discriminatory and inherently victim blames LGBTQ+ people, it is also very difficult to track how much this continues to affect people for two main reasons: the government does not track these cases systematically and the FBI doesn’t track information about the sexual orientation or gender identity of homicide victims. This data also shows that defense attorneys who use the LGBTQ+ “panic” defenses can reduce the defendant’s murder charge 32% of the time, even if it involves horrific amounts of violence (American Bar). The thing I’ve taken away from with learning all of this is that essentially the LGBTQ+ “panic” defense claims that a victim’s sexual orientation or gender identity not only explains, but also excuses an animalistic and cold blooded loss of self-control and autonomy within the defendant, resulting in murder or assault. 

This LGBTQ “panic” defense, while incredibly horrifying to learn about as an LGBTQIA+ person, also continues to perpetuate in society that LGBTQIA+ people are essentially perpetrators of their own assault or murder. A society that accepts this defense as a form of legal argument that can hold up in court is not a society that respects or protects their LGBTQIA+ community. While antiquated, that does not justify the blatant victim blaming that is justified under law in many of our governments and societies. 

One of the first cases that brought this LGBTQ+ “panic” defense to national attention was Matthew Shepard’s murder in 1998, who had been robbed, beaten, and set on fire by 2 men as a gay student at University of Wyoming. Aaron McKinney and Russell Henderson were charged with first-degree murder, and kidnapping. Their trials were in 1999 and they claimed that Shepard was sexually aggressive at the time of the murder. He then claimed that he had his own childhood history of being sexually bullied by another boy, which then triggered his response to lose control of himself after Shepard’s alleged sexual advance. (Later reports suggested that Shepard and at least one of the defendants were previously in a sexual relationship, though). In response to this, the jury convicted them of felony murder. This is considered less serious than his previous conviction that was the intent of the prosecution, but it is more serious than manslaughter, which the defendant attempted for. 

The case of Matthew Shepard shows one of the things that are difficult when discussing the LGBTQ+ panic defense law: if someone feels threatened by someone else sexually, then defense is a reactionary and reasonable response. The issue with the LGBTQ+ panic defense argument though, is the fact that the defense would be needed because of the attacker’s sexual orientation or gender identity. There’s a difference between laws to defend yourself in society, and specifically targeting a community of people on the basis of their sexual orientation. 

lgbt panic defense example

While Matthew Shepard’s case launched the LGBTQ+ “panic” defense into the public eye, Daniel Spencer’s case proved that it is still being used recently. In 2015, Daniel Spencer invited James Miller to his house to play some music. The two were neighbors and had only met twice previously, bonding over their love for music. Later that night, Spencer was stabbed and murdered by James Miller. In 2018 at the trial, Miller claimed that Spencer attempted to kiss Miller, and Miller’s rejection provoked Spencer to threaten Miller. Miller then claimed that he had to defend himself by stabbing Spencer. Physical evidence eliminated this claim that Miller was ever in danger, but the LGBTQ+ “panic” defense worked, and his case was mitigated from murder to criminally negligent manslaughter. The jury recommended that he receive 10 years’ probation, and the judge added six months of jail time, 100 hours of community service, and restitution payment to Spencer’s family (NBC). To remind you, this was in 2018. Two years ago, Daniel Spencer’s murderer walked away with 10 years of probation. 

What can be done? We’re in 2020, we need to be moving forward in respect to protecting and supporting minorities in our countries. Some bills have been introduced – and some, even passed! – recently to ban the LGBTQ+ “panic” defense. Some political leaders are finally recognizing the amount of homicide and violence perpetrated against the LGBTQIA+ community and are realizing that the LGBTQ+ panic defense implicitly “blame(s) gay and trans people for violence against them” (The New York Times). 

Many organizations and politicians are leading the effort to ban the LGBTQ+ panic defense. In 2013, the American Bar Association approved a resolution calling for an end to this defense. Since then, many states have banned the defense, and many others have introduced legislation against it but haven’t passed it yet. 

States where the LGBTQ+ “panic” defense is banned: 

If your state is not on this list, call your politicians and demand them to support the ban! 

  • California
  • Illinois
  • Rhode Island
  • Nevada
  • Connecticut
  • Maine
  • Hawaii 
  • New York
  • New Jersey
  • Washington

States where a ban on the LGBTQ+ “panic” defense is introduced:

  • District of Columbia
  • Minnesota
  • Pennsylvania
  • Texas
  • Massachusetts
  • New Mexico
  • Wisconsin
  • Maryland 
  • Iowa

This information is as of July 1, 2019 from LGBT Bar.

Despite these new bills that are being introduced, they still often allow the defendant to defend themselves based on if they can tie their extreme reaction toward the victim to a personal trauma. For example, the federal bill states that a court can “admit evidence of a defendant’s past trauma to excuse, justify, or mitigate an offense” (The New York Times). This of course begs the question: how can we ensure that the law justifies the acts committed against the victim and supports the past trauma of the defense if it is an accurate statement? Should we attempt to find that intersection, or is that unattainable? 

Legal scholar Aya Gruber argues that the LGBTQ+ “panic” defense is a similar argument that women have when they have killed abusive men, claiming that their charges should be reduced, due to the abuse or assault that the woman endured from the man. This law is different however as Gruber says, because women “have been more successful than men in using the provocation defense, likely because female defendants have more readily proved prior trauma has been suffered” (The New York Times). The law in regard to women is with the intent of supporting and protecting women, even though it doesn’t necessarily work yet in decreasing rape or sexual assault charges. On the contrary to this, the LGBTQ+ “panic” defense is not with the intent of supporting and protecting men, it is with the emphasis on the fact of this happening because of another person’s sexual orientation or gender identity. The very important distinction between protecting battered women and the LGBTQ+ “panic” defense is the discriminatory and ignorant belief that the other accused’s sexual identity is the cause of bodily harm, which is rooted in prejudice. 

As I read of these murder and assault cases, it’s impossible not to see that our legal and governmental system is rooted in discrimination and continues to discriminate against LGBTQ+ citizens and other minorities, however antiquated the path of discrimination may be. Between blatant discrimination of LGBTQ+ people, there are all these other layers and nuances to it. The thing that continues to breed the discrimination in many – if not all – instances, is the complexity of it. As history continues on how we communicate, interact, lead, govern, and express ourselves changes. With this, we are also changing, and so does discrimination. So, while laws like this exist and perpetuate a culture of violence and discrimination against minorities, we need to push ourselves to learn about them in order to dismantle them. Dismantling something as robust and deep seated as the LGBTQ+ panic disorder however, has inherent gray areas that need to be accounted for, such as how few of these may be reported, if the victim was out to the perpetrator, how to draw the distinction between protecting survivors of sexual assault and also protecting and breaking down the inherent ignorance that is deep within our societies and cultures against the LGBTQ+ community. We must do better, and we must keep learning. 


The senate votes this June on a bill that will ban Gay and Trans Panic defense in federal courts.  The bill failed in 2018. Call and email your representatives today, urging them to ban LGBT Panic Defense:

https://www.house.gov/representatives/find-your-representative

https://www.senate.gov/general/contact_information/senators_cfm.cfm

1 comment

  • As someone who lives in the Bible Belt, I’m nervous about coming out to people. The brother of a non-binary person who came out as gay threatened to kill him because he “couldn’t stand being related to a f*****.” Our small community is constantly harassed and attacked, and our school turns a complete blind eye because the law allows them to. A ton of them are homo/transphobic, too. Our only real help are three teachers. It’s just sickening that these things are allowed to happen anywhere.

    River

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