Written by Samantha McPhillips
The LGBTQ+ ‘panic’ defense, also known as the “Gay and Trans panic defense”, justifies violence against LGBTQ+ people and is currently still legal in 40 states across the United States. These ‘panic’ defenses were legal strategies first used in the 1960s when it was argued that an LGBTQ+ victim’s sexual orientation or gender identity or expression caused perptrators to go into a state of “homosexual panic,” justifying and excusing the violence that was then committed against the victim.
According to the Nat’l LGBT Bar Association, this defense is used in 3 ways in murder cases:
Defense of insanity or diminished capacity - The defendant alleges that the victim made a sexual gesture, expressed an opinion or proposition towards them that triggered a nervous breakdown of the defendant which then caused an LGBTQ+ ‘panic’ and resulted in the attack.
Defense of provocation - The defendant argues that the victim’s proposition, also known as a “non-violent sexual advance” was to lead or persuade the defendant to kill them. The advances that the defendant claims to be provocative will only be considered in court to be “provocative” if the victim is a member of the LGBTQ+ community. And,
Defense of self-defense - The defendant claims that the victim was about to cause them serious bodily harm “because” of their sexual orientation or gender identity/expression.
All of these defense tactics argue that a victim’s sexual orientation or gender identity threatened the defendant, thus justifying assault on the victim. Not only is this offensive, but it is harmful as it implies that a person’s gender or sexual identity makes them more of a threat to society.
The LGBTQ+ panic defense has been used in 100+ cases and has often resulted in lesser charges and sentences for defendants. As recently as 2018, a defense attorney argued that the defendant, James Miller, who had killed his neighbour, Daniel Spencer, did so after Spencer allegedly tried to kiss him. The defendant was convicted of ‘criminally negligent homicide,’ which is a lesser charge than murder or manslaughter. Miller was sentenced to 10 years probation and 6 months jail time.
In New York City in 2013, Islan Nettles, a Black trans woman, was assaulted by James dixon and later died from her injuries. Dixon allegedly felt ‘fooled” after finding out that Nettles was trans and attacked her, punching her multiple times in the head. In one interview with Vice News, Dixon stated “I committed these acts because of who you are” and that his “pride was at stake.” Dixon ultimately was not charged with a hate crime and was sentenced to 12 years in prison for manslaughter. He was the last to escape accountability using the defense, as New York passed the bill to ban the defense in 2019, in memory of Matthew Shepard and Islan Nettles.
LGBTQ+ people make up 4.5% of the U.S. population, with 66% of the adult LGBTQ+ population living in states that have not banned the Gay and Trans ‘panic’ defense. They comprise 18.5% of hate crime victims. Since 2013, at least 157 trans people have been killed. 70% of those people were Black trans women.
No federal protections have been passed to ban the Gay and Trans panic defense but bills were introduced in the House and Senate in July 2018 and June 2019. The American Bar Association commented on the introduction of the bills to ban the defense stating,
“The defense has no medical or psychological basis, as their use to make a case for either insanity or diminished capacity is inappropriate, since homosexual panic disorder - what was once thought by psychiatrists to be a panic brough on by perversion - is no longer recognised by the American Psychiatric Assosication’s Diagnostic and Statistical Manual of Mental Disorders.”
As of June 2020, only 10 states have banned the LGBTQ+ ‘panic’ defense after the American Bar Association approved a resolution that was introduced by the LGBT Bar. Those states being; California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, and Colorado with more states considering and soon to be moving forward with the ban. In 2014, California became the first state to ban this discriminatory legal defense strategy. After investigating into this topic, it could be said that this is a lazy defense. Former California State Assembly member, Susan Bonilla, said that the majority of the people in California who did not want the bill passed in 2014 were former public defenders. They had raised concerns that by banning panic defenses, defendants would be “denied complete and vigorous defense.”
Although this article focuses on the LGBTQ+ ‘panic’ defense in the U.S, it should be highlighted that this law is also used around the world. Australia has banned the defense, known as the “Homosexual advance defense” in all territories as of 2017 apart from South Australia, who were actually the first Australian jurisdiction to legalise homosexual acts in 1975. Although, they recently announced that the defense will be repealed, with a bill passed and introduced sometime this year. Similarly, New Zealand removed the defense of provocation when they abolished Section 160 of the Crimes Act 1961.
The United Kingdom has different laws within itself for each country. England and Wales has not banned the use of the defense in law, known as the “Portsmouth Defense” and while the legal defense still exists the Crown Prosecution Service of England and Wales does state that "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." However, Scotland banned the defense under the Portsmouth Defence Abolishment (Scotland) Act 2017.
The Philippines controversially have not banned the defense and in one case, the murder of Jennifer Laude was given an “absolute pardon” which Senator Imee Marcos said would contribute to maintaining the countries relations with the United States.
These outdated legal strategies lack any recognition of a modern society, of humanity and of common sense. It is harrowing that currently, one’s sexual orientation or gender identity can still provide even an inkling of a legal defense in their murder trial. The defense goes to the extent of stripping away any respect, dignity or acknowledgement of the worth of the victim. They are no longer defined as a human, but as a threat and of their sexuality or gender identity/expression. Not only the victims, but all members of the LGBTQ+ community. We should not be defined as a threat due to our sexuality or identity. We should not be denied justice because of it. We are human and we must fight to change our world, not for ourselves but for all.
Steps in which you can take to help are:
Raise awareness of the LGBTQ+ panic defense to you friends, family and those in your local community. Become an advocate.
Contact legislators, governors, politicians, local authorities and leaders in states, counties, territories and countries currently trying to or have not banned the gay/trans panic defense.
Let your own politicians know that equality under the law should apply to the victims of hate crimes as well.
Support organizations that work to protect and uplift the LGBTQ+ community
Sign and share petitions to help ban the defense in all countries, see the links below to start
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