The gay/trans panic legal defense legitimizes and excuses violent and lethal behavior against members of the LGBTQ+ community. The defense is defined by the LGBT Bar asThis legally sanctioned discrimination against one’s sexual orientation and gender identity must cease.
Here’s why, and how, you can help these bans succeed.
In the United States, the LGBTQ+ community makes up 3.5% of the total population yet is vastly overrepresented in hate crime statistics.Over the course of lesbian, gay, or bisexual people’s lifetimes, Those individuals at the intersection of homophobia, transphobia, and racism, face worse statistics. Although these numbers are already highly over representative of the LGBTQ+ community compared to the U.S. population, they could be higher; often crimes against the LGBTQ+ community are not recorded as hate crimes by all official sources. are also concerns that may inhibit LGBTQ+ victims from reporting crimes against them.
Despite these grim statistics, there is hope. As of July 1, 2019, eight states have passed legislative bans on the use of gay/trans panic as a legal defense:It must be noted that gay/trans panic is not an affirmative legal defense; it is a tactic to strengthen the defense by playing on prejudice. It has, however, been used to not only explain a defendant’s actions, but to excuse them as well.
Typically, the defense has three variations:The insanity or diminished capacity defense argues that the victim’s sexual orientation or gender identity is to blame for the defendant’s break down into a panic. The provocation defense argues that the victim’s proposition of a could be sufficiently provocative to induce the defendant to kill them. The final variation, of self-defense, claims that because of the victim’s sexual orientation or gender identity, the victim must have been about to cause the defendant serious bodily harm. Despite debunking “gay panic disorder,” and its removal from the DSM by the American Psychological Association in 1973, .
In the 1954 murder of William T. Simpson in North Miami, FL, the defendants claimed that they shot Simpson, a gay man, while “resisting his advances,” thus utilizing the provocation defense. Even though the defendants were criminals who frequented that area of highway to rob drivers, and intentionally targeted homosexual victims, the defendants were convicted of manslaughter rather than first-degree murder. In the 1998 murder of Scott Amedure by Jonathan Schmitz, Amedure revealed that he had a crush on Schmitz while on the “Jenny Jones” show. After a friendly evening together, Amedure left Schmitz a provocative note. The defense again utilized the provocation defense, citing that the nature of the note and Amedure’s homosexuality was enough to send Schmitz into a panic and kill Amedure. Schmitz was convicted of the lesser offense second-degree murder rather than first-degree.
The gay/trans panic defense has not always been successful. In the 1998 murder of Matthew Shepard in Laramie, WY, the defendants again attempted to use the provocation defense to justify the torture and murder of Shepard. The defendants attempted to argue that Shepard’s proposition drove them to murder by "irresistible impulse.” However, in the state of Wyoming, irresistible impulse is not a defense allowed under the statutory insanity defense construct. The gay/trans panic defense was deemed inadmissible, not due to the illegitimacy of the gay/trans panic defense, but instead due to Wyoming’s statutory insanity defense construct.
Currently, there are several other state legislative efforts to ban and denounce the legitimacy of the gay/trans panic defense. The status of these efforts is as follows:
We must show solidarity with the LGBTQ+ community. 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. Help to end this discrimination by supporting legislative bans on the gay/trans panic defense.
The steps you can, and should, take are as follows:
- Contact legislators and governors in states currently trying to ban the gay/trans panic defense. Be sure to reach out to federal legislators as well.
- Be an advocate in states where there is currently no proposed gay/trans panic ban legislation.
- 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, like the LGBT Bar, or the American Bar Association’s Commission on Sexual Orientation and Gender Identity.
- Litigate cases which can promote the protection and empowerment of the LGBTQ+ community.