Bar Talk

This month, Nevada became the fourth state to ban gay and trans ‘panic’ defenses in the United States. That is a significant victory in the ongoing fight for full LGBTQ+ legal equality – and yet many Americans still do not know what a gay or trans ‘panic’ defense is, much less how effective, pervasive, and dangerous these defenses are in court.

Gay and trans ‘panic’ defenses have been used time and time again to acquit perpetrators of violence against LGBTQ+ victims. In 2009, for instance, Terrance Hauser was brutally murdered by his neighbor in Chicago. When the case was brought to court, Hauser’s murderer claimed that he was defending himself from Hauser’s sexual advance, and the only way he could escape was to stab Hauser over sixty times with a dagger. The jury accepted the murderer’s story of ‘gay panic’ and he was fully acquitted.

At its core, a gay or trans ‘panic’ defense wrongly argues that a violent offender should get a lighter sentence because their victim’s sexuality or gender identity motivated their attack. Its continued use not only cements the bigoted notion that LGBTQ+ lives are worth less than others, it also allows violent offenders who seek to hurt LGBTQ+ individuals to escape justice. Sometimes, the defense is used to mitigate the charge against the assailant – for example, lessening a charge of murder to one of manslaughter – while other times, the defense results in a hung jury or a complete exoneration.

Gay and trans ‘panic’ is not a freestanding defense, but is used in conjunction with one of three other defenses:

1) Diminished capacity, in which a 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 a gay or transgender ‘panic’;

2) Provocation, in which a defendant argues that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim; and

3) Self-defense, in which 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. These self-defense claims are offensive and harmful because they argue that a person’s gender or sexual identity makes them more of a threat than they would be if they were cisgender or straight.

After Hauser’s murder, Illinois outlawed gay and trans ‘panic’ defenses once and for all. California, Rhode Island, and Nevada also have bans in place, and similar legislation has been introduced in the District of Columbia, New Jersey, Minnesota, Pennsylvania, New York, Texas, New Mexico, and Connecticut, among others. The defense tactic has also gained significant attention in the last year due to the introduction of a federal bill, sponsored by the National LGBT Bar Association and several other high profile LGBTQ+ rights organizations, to prohibit its use in federal courts.

Earlier this year, Washington also considered legislation prohibiting the use of gay and trans ‘panic’ defenses and many believed the state was poised to become the fourth to ban the defense tactic. Committee members who opposed the Washington bill were concerned that this law would prevent victims of any kind of unwanted sexual advance from legally defending themselves. However, in a testimony before the Judiciary Committee, David Ward from Legal Voice aptly stated that under the proposed bill, “you can respond to someone who invades your space in an appropriate manner.” Dana Savage, member of the QLaw Bar Association and a transgender woman who has been the target of multiple threats of violence, also clarified that the bill would only apply to cases of non-forcible advances. “[If] there’s no force involved, […] you don’t need to meet it with force,” she said. Ultimately, the bill was not brought to a vote in time and didn’t leave the state legislature. Washington will have a chance to re-introduce the bill next year, and the state will hopefully take the opportunity to stand up for its LGBTQ+ community’s right to safety and justice.

This month, Nevada became the fourth state to sign prohibitions on gay and trans ‘panic’ defenses into law. The bill, SB 97, was introduced on behalf of the Nevada Youth Legislature and prohibits “use in a criminal case of certain defenses based on the sexual orientation or gender identity or expression of the victim.” Legislators overwhelmingly supported SB 97, but the bill was not without its opponents.

Nevada’s public defenders opposed the law on the grounds that it limited the defense strategies at their disposal. According to the Nevada Current, “all in opposition said that while they support the LGBT community, they believe the ban may have an unintended consequence and could negatively affect a defendant’s right to a fair trial.” Those who support the legislation contend that by allowing a defense tactic rooted in unfounded fear of LGBTQ+ people and relying on bigotry to be used as a mitigating factor or even for acquittal denies LGBTQ+ victims justice. The vast majority of Nevada’s representatives agreed that gay and trans ‘panic’ defenses are dangerous, unjust, and discriminatory. The bill passed in both houses and on May 16, Governor Sisolak signed the bill into law.

On May 9, the Connecticut state senate passed similar legislation, and the state is poised to become the next  jurisdiction to ban the defense and protect LGBTQ+ individuals from discriminatory gay and trans ‘panic’ tactics in state courts.  Hopefully, Connecticut lawmakers will follow in Nevada’s footsteps and make a stand for the right of LGBTQ+ people to be able to live without the constant fear of senseless violence motivated by hate.