The LGBT Bar is proud to be leading the effort to ban the LGBTQ+ “panic” defense across the country. In 2013, The American Bar Association (ABA) unanimously approved a resolution—introduced by the LGBT Bar—calling for an end to this heinous defense strategy. Since then, the states of California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, and Colorado have banned such defenses. Legislation is pending federally as well as in multiple states and the District of Columbia.
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 LGBT 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 This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.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 4.5 percent, an estimated 14.6 million people.
- Hate crime statistics from the FBI show, however, that LGBTQ+ people are disproportionately targeted:
- In 2017, there were 1249 recorded hate crimes against people for their sexual orientation and gender identity. These hate crimes made up a combined 17.6 percent of motivation in single-bias hate crime incidents—a four percent increase from 2016.
- 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 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.
1995Talk show host Jenny Jones was hosting a show that discussed the topic of secret admirers. Jonathan Schmitz was invited to participate and was surprised and embarrassed to see his male friend, Scott Amedure, confess to having a crush on him. Three days after the show, Schmitz drove to Amedure’s home and shot Amadure twice in the heart, killing him. At trial, Schmitz argued that he suffered from diminished capacity due to the “gay panic disorder” he experienced when Amedure revealed his attraction on the Jenny Jones Show, which rendered him unable to plan the killing, despite overwhelming evidence to the contrary. The jury reduced the charge from premeditated murder to second-degree murder.
2001Ahmed Dabarran was an Assistant District Attorney in Fulton County, Georgia. He was struck over the head over a dozen times by Roderiqus Reshad Reed and died from his injuries. At trial, Reed’s attorney claimed that Reed killed Dabarran to protect himself from unwanted sexual advances. However, a medical examiner testified that Dabarran was asleep at the time of the murder. The jury acquitted Reed of the murder despite Reed’s full confession.
2002Gwen Araujo, a 17-year-old transgender woman, met Michael Magidson and José Merel online and the three engaged in consensual sex. Several months later, Magidson and Merel discovered that Araujo was transgender. They beat her repeatedly, strangled her, tied her up, and hit her with a shovel, killing her. At trial, Magidson’s attorney claimed that Magidson’s violence was caused by the shock of discovering Araujo was transgender. The jury deadlocked. In a second trial, however, the jury rejected Magidson’s claim and found him guilty of second-degree murder.
GUIN “RICHIE” PHILLIPS
2003Guin “Richie” Phillips was strangled to death before being placed in a suitcase and dumped into River Lake. Police arrested Joshua Cottrell for the murder. During the trial, Cottrell’s defense attorney claimed that Phillips made unwanted sexual advances and attempted to force Cottrell to have oral sex, but friends and family testified that Cottrell invited Phillips to his hotel room and posed questions of a sexual nature before attacking Phillips. Cottrell’s aunt testified that the murder was premeditated. The jury forewent charges of murder or reckless homicide and convicted Cottrell of second-degree manslaughter.
2008In July of 2008, 18-year-old Angie Zapata met 31-year-old Allen Andrade and they spent three days together, during which they had at least one sexual encounter. When Andrade discovered that Zapata was transgender, he viciously beat her with a fire extinguisher. Upon his arrest, Andrade said he thought he had “killed it.” Andrade was found guilty of both first-degree murder and a hate crime and was sentenced to life in prison.
2008Terrance Hauser was stabbed 61 times by his neighbor Joseph Biedermann. During his murder trial, Biedermann claimed that he passed out and woke up to Hauser holding a sword against his neck and attempting to sexually assault him. Biedermann claimed to be in such a panic that the only way he could escape was to stab Hauser 61 times, but evidence from the scene showed few signs of struggle. The jury acquitted Biedermann of first-degree murder.
FRANCISCO GONZALEZ FUENTES
2011Pedro Garcia and Wilfredo Sanchez beat Francisco Gonzalez Fuentes, placed him in the bathtub, and stabbed him to death before dismembering his body and packing it into garbage bags. At trial, Garcia stated that Fuentes had told others that they were in a relationship, and Garcia attacked him because he was terrified that someone would think he was gay. The prosecution argued that Garcia was Fuentes’ live-in boyfriend. Sanchez was sentenced to death and Garcia received 60 years after agreeing to testify against Sanchez.
2013Marco McMillian was the first openly gay man to run for office in Mississippi. In February 2013, Lawrence Reed choked McMillian with a wallet chain, drowned him, doused his body in gasoline and set it on fire. Reed admitted to the murder but insisted he was defending himself against McMillian’s sexually aggressive advances. Prosecutors presented strong physical evidence showing no indication of an attack by McMillian. Reed was sentenced to life in prison.
2013Ever Orozco, 69, was viciously stabbed to death by Steven Torres, 22, under a subway in Queens. Torres claimed that Orozco blew kisses at him and made other sexual advances. Torres was convicted of second-degree murder.
2014US Marine Scott Pemberton was stationed in Olangapo City, Philippines, when he met Jennifer Laude. When he discovered her transgender status, he choked Laude until she lost consciousness and died. A Philippine court found Pemberton guilty of homicide, but the judge claimed the charge could not be elevated to the level of murder.
2015Daniel Spencer was stabbed and murdered by his neighbor Robert Miller in September 2015. Miller claimed that he rejected a sexual advance from Spencer and acted in self defense when Spencer became agitated, but physical evidence disproved his claim that he was ever in danger. Miller’s conviction was mitigated from murder to criminally negligent manslaughter.
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 LGBT 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
Legislation against the LGBTQ+ “panic” defense has been introduced, but not yet passed, in:
- District of Columbia, 2017 and 2019 (Bill 1, Bill 2)
- Minnesota, 2018
- Pennsylvania, 2019 and 2020
- Texas, 2019
- Massachusetts, 2019
- New Mexico, 2019
- Wisconsin, 2019
- Maryland, 2020
- Iowa, 2020
In July of 2018, The Gay and Trans Panic Defense Prohibition Act of 2018 was introduced by Senator Markey (D-MA) in the United States Senate and by Congressman Kennedy (D-MA) in the United States House of Representatives. The bill was reintroduced in the House and the Senate in June of 2019.
We encourage you to contact both your federal and state representatives to urge them to take action against the heinous LGBTQ+ “panic” defense strategy.