What is the LGBTQ+ “panic” defense? The LGBTQ+ “panic” defense strategy 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, including murder. It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses.
When a perpetrator uses an LGBTQ+ “panic” defense, they are claiming that a victim’s sexual orientation or gender identity not only explains—but excuses—a loss of self-control and the subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others. One of the most recognized cases that employed the LGBTQ+ “panic” defense was that of Matthew Shepard.
In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. The men attempted to use the LGBTQ+ “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today. What is the difference between the “gay/trans panic” defense and the “LGBTQ+ panic” defense? The LGBTQ+ Bar uses “LGBTQ+ panic” rather than “gay/trans panic” because the former is an inclusive phrasing which recognizes that the defense strategy impacts all folks in the LGBTQ+ community. To refer to it as “gay/trans panic” excludes violence against those who do not identify as gay or transgender.
How is the defense used in court? Traditionally, the LGBTQ+ “panic” defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide. Defense of insanity or diminished capacity: The defendant alleges that a sexual proposition by the victim – due to their sexual orientation or gender identity – triggered a nervous breakdown in the defendant, causing an LGBTQ+ “panic.” This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973. Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up.
Defense of provocation: The defense of provocation allows a defendant to argue that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim. Defendants claiming a “provocative” advance stigmatize behavior which, on its own, is not illegal or harmful, but is only considered “provocative” when it comes from an LGBTQ+ individual. Defense of self-defense: Defendants claim they believed that the victim, because of their sexual orientation or gender identity/expression, was about to cause the defendant serious bodily harm.
This defense is offensive and harmful because it argues that a person’s gender or sexual identity makes them more of a threat to safety. In addition, LGBTQ+ “panic” is often employed to justify violence when the victim’s behavior falls short of the serious bodily harm standard, or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed.
Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups? The LGBTQ+ “panic” defense frequently draws on stigmas particular to LGBTQ+ people, their sexualities, and their genders to justify horrific violence against LGBTQ+ individuals. The defense is rooted in homophobia and transphobia. Considering intersectionality, particular individuals have higher likelihoods of being victims of hate crimes. As we have seen in 2019, there has been an increase of transgender women of color being victims of hate crimes.
In the United States, the estimated adult LGBTQ+ community makes up 5.6 percent, an estimated 18.4 million people. Hate crime statistics from the FBI show, however, that LGBTQ+ people are disproportionately targeted: In 2019, there were 1,656 recorded hate crimes against people for their sexual orientation and gender identity. These hate crimes made up a combined 18.8 percent of motivation in single-bias hate crime incidents. Research shows that 1 out of 5 lesbian, gay, and bisexual people living in the United States will experience a hate crime in their lifetime, and more than 1 out of 4 transgender people will. We cannot maintain this unjust status quo!
How successful is the LGBTQ+ “panic” defense? Juries have acquitted dozens of murderers of their crimes through a defense team’s use of an LGBTQ+ “panic” defense strategy. As recently as April 2018, an LGBTQ+ “panic” defense was used to mitigate a murder charge. Even in instances where courts instruct jurors not to engage in bias, the implicit homophobic bias of hearing an LGBTQ+ “panic” defense can still influence the jury’s decision.
For example, in cases where perpetrators are not acquitted as a result of an LGBTQ+ “panic” defense, the jury may still deadlock because it is unable to shake the inherent homophobia of the defense. When it comes to deciding an LGBTQ+ individual’s right to life, a hung jury and a mitigated sentence have the same effect: Withholding justice from LGBTQ+ victims and sending the message that an LGBTQ+ person’s life is not equal within a court of law.
What can be done? Some courts and legislatures have begun to curb the use of the LGBTQ+ “panic” defense, but many states are lagging behind. In order to ensure that the LGBTQ+ “panic” defense is not seen as a valid excuse, courts should instruct juries to make decisions without bias or prejudice. Jury instructions, however, are often not enough to ensure that people are not swayed by discriminatory appeals. Legislatures should specify that neither non-violent sexual advances nor the discovery of a person’s gender identity can be used as an adequate provocation for murder.
Finally, local governments need to educate courts, prosecutors, defense counsel, and the public about the devastating individual and legal consequences of the LGBTQ+ “panic” defense. Following the ABA’s resolution in 2013, The LGBTQ+ Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.
The LGBTQ+ “panic” defense has been banned in:
California, 2014 Illinois, 2017 Rhode Island, 2018 Nevada, 2019 Connecticut, 2019 Maine, 2019 Hawaii, 2019 New York, 2019 New Jersey, 2020 Washington, 2020 Colorado, 2020 District of Columbia, 2020 Virginia, 2021 Vermont, 2021 Oregon, 2021 Maryland, 2021 Legislation against the LGBTQ+ “panic” defense has been introduced, but not yet passed, in: Wisconsin, 2019 Texas, 2020 Iowa, 2021 Nebraska, 2021 Florida, 2021 New Mexico, 2021 New Hampshire, 2021 Minnesota, 2021 Massachusetts, 2021 Pennsylvania, 2021 Michigan, 2021 North Carolina, 2021 In April of 2021, The Gay and Trans Panic Defense Prohibition Act of 2021 was introduced by Senator Markey (D-MA) in the United States Senate and by Congressman Pappas (D-NH) in the United States House of Representatives. We encourage you to contact both your federal and state representatives to urge them to take action against the heinous LGBTQ+ “panic” defense strategy.