July 31, 2018

Gay and Trans Panic Defense

S. 3188,  introduced July 10 by Sen. Edward Markey (D-Mass.), would prohibit the use of “gay panic” and “trans panic” legal defenses, which the ABA considers to be remnants of a by-gone era when legalized discrimination and widespread hostility toward lesbian, gay, bisexual, and transgender individuals was the norm. “These defenses have no place in either our society or justice system and should be legislated out of existence,” ABA Governmental Affairs Director Thomas M. Susman wrote in a June 20 letter to Markey supporting the legislation. Gay panic and trans panic defenses seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Historically, these defenses have been used by defendants in three ways: to claim insanity or diminished capacity because a sexual proposition by the victim triggered a nervous breakdown in the defendant; to bolster a defense of provocation by arguing that a victim’s sexual advance, although entirely non-violent, was sufficiently provocative to induce the defendant to kill; and to contend that the defendant reasonably believed the victim was about to cause the defendant serious bodily harm because of the victim’s sexual orientation or gender identity. ABA policy adopted in 2013 recommends enactment of legislation that would require courts to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity, and specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.

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