Summer 2019

The Gay/Trans Panic Defense

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 as “a legal strategy which asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder.”[1] This 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 LG BTQ+ community makes up 3.5% of the total population yet is vastly overrepresented in hate crime statistics. In 2007, sexual orientation ranked as the third highest motivator for hate crime incidents at 17% of total attacks, behind race (51%) and religion (18%).[2] Over the course of lesbian, gay, or bisexual people’s lifetimes, one in five will experience hate crimes, and one in four transgender people will as well.[3] Those individuals at the intersection of homophobia, transphobia, and racism, face worse statistics. Between 2013 and 2017, of the 102 known transgender people killed in hate crimes in the United States, 75 were black or African-American.[4] 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. Fears of retaliation, discrimination, harassment, or being outted to friends and family are also concerns that may inhibit LGBTQ+ victims from reporting crimes against them.[5]

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: California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, and New York.[6] 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: defense of insanity or diminished capacity, defense of provocation, and defense of self- defense.[7] 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 “non-violent sexual advance”[8] 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, legal defense teams continue to use it.[9]

Typically, the defense has three variations: defense of insanity or diminished capacity, defense of provocation, and defense of self-defense.[7] 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 “non-violent sexual advance”[8] 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 Associa tion in 1973, legal defense teams continue to use it.[9]

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 de fendants 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: Washington State (in committee), New Mexico (in committee), Texas (in committee), Minnesota (in committee), Pennsylvania (in committee), New Jersey (in committee), Massachusetts (in committee), and the District of Columbia (in committee).[10] At the federal level, the Equality Act, which bans the gay/trans panic defense, has just been introduced.[11]

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:

  1. 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.
  2. Be an advocate in states where there is currently no proposed gay/trans panic ban legislation.
  3.  Let your politicians know that equality under the law should apply to the victims of hate crimes as well.
  4. 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
  5.  Litigate cases which can promote the protection and empowerment of the LGBTQ+ community.

 

Alexandria (Lexie) Holden

ABA CRSJ Intern 2019

     

    1.  “Gay and Trans ‘Panic’ Defense.” Gay and Trans "Panic" Defense, The National LGBT Bar Ass’n, 2019, lgbtbar.org/programs/ advocacy/gay-trans-panic-de fense/.
    2.  Federal Bureau of Investiga- tion, U.S. Dep’t of Justice. “Table 5, Offenses, Known Offender’s Race by Bias Motivation, 2007.” Hate Crime Statistics, 2007d (released Oct. 2008). www.fbi.gov/ucr/ hc2007/ table_05.htm (accessed Jan. 11, 2009).
    3.  Coston, Liz. “Understanding and Handling Hate Crimes against Gay, Bisexual, and Transgender People.” Scholars Strategy Network, 9 Nov. 2018, scholars.org/brief/ understanding-and-handling-hate- crimes-against-gay-bisexual-and- transgender-people.
    4.  Lee, Mark, Human Rights Campaign. “A Time to Act: Fatal Vi- olence Against Transgender People in America 2017.” A Time to Act: Fatal Violence Against Transgender People in America 2017. assets2. hrc.org/files/assets/resources/A_ Time_To_Act_2017_REV3.pdf?_ ga=2.268306763.410843449.15604 34299-1106703615.1560434299.
    5.  Id.
    6.  “Gay Trans Panic Defense Leg- islation Map.” The Nat’l LGBT Bar Ass’n, 2019, lgbtbar.org/programs/ advocacy/gay-trans-panic-defense/ gay-trans-panic-defense-legislation
    7.  Id.
    8.  Id.
    9.  Id.
    10.  “Gay Trans Panic Defense Legislation Map.” The National LGBT Bar Ass’n, 2019, lgbtbar.org/ programs/advocacy/gay-trans- panic-defense/gay-trans-panic- defense-legislation/.
    11.  Id.