The LGBT Bar is proud to be leading the effort to ban gay and trans “panic” defenses across the country. In 2013, The American Bar Association unanimously approved a resolution – introduced by The Bar – calling for an end to these heinous defense arguments. Since then, the states of California, Illinois, Rhode Island, and Nevada have banned such defenses. Legislation is pending federally as well as in multiple states and the District of Columbia.
What is the gay and trans “panic” defense?
The gay and trans “panic” defense is 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. It is not a free standing defense to criminal liability, but rather a legal tactic which is used to bolster other defenses. When the defense is employed, the perpetrator claims that their victim’s sexual orientation or gender identity not only explains – but excuses – their loss of self-control and subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, these defenses imply that LGBTQ+ lives are worth less than others.
One of the most recognized cases that employed the gay “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 gay “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today.
How is the defense used in court?
Traditionally, the gay and trans “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 a gay or transgender “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 This defense is based on an outdated psychological term, “gay panic” disorder, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.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, gay and trans “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?
“Panic” defenses are uniquely used to justify violent crimes against LGBTQ+ individuals. While other minority groups are undoubtedly also victims of hate crimes, there are few, if any, instances where a defendant claims that the revelation of someone’s race, religion, or other minority identification provoked them to violence. In contrast, gay and trans “panic” defenses frequently draw on unique stigmas about LGBTQ+ people, sexuality, and gender to justify horrific violence against gay and trans individuals.
How successful are gay and trans “panic” defenses?
Gay and trans “panic” defenses have been used to acquit dozens of murderers of their crimes. In fact, a gay “panic” defense was used as recently as April 2018 to mitigate a murder charge to criminally negligent homicide. Even in instances where juries are instructed not to listen to gay and trans “panic” defenses, the implicit homophobic bias of hearing the defense at all can still influence the jury’s decision. For example, in cases where perpetrators are not acquitted as a result of a gay and trans “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: they withhold justice from LGBTQ+ victims and send the harmful message that an LGBTQ+ person’s life is not worth protecting in a court of law.
What can be done?
Some courts and legislatures have begun to curb the use of gay and trans “panic” defenses, but many states are lagging behind. In order to ensure that gay and trans “panic” defenses are not seen as a valid excuse, courts should instruct juries to make decisions without bias or prejudice. However, jury instructions are often not enough to ensure that people are not swayed by discriminatory appeals, so legislatures should specify that neither non-violent sexual advances nor the discovery of a person’s gender identity can be adequate provocation for murder. Finally, local governments need to educate courts, prosecutors, defense council, and the public about the devastating individual and legal consequences of gay and trans “panic” defenses.
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 these tactics in courtrooms across the country. The defenses were banned in California in 2014, Illinois in 2017, Rhode Island in 2018, Nevada, Connecticut, Hawaii, Maine, and New York in 2019. Similar legislation has been introduced but not yet passed in the following states: District of Columbia in 2017, New Jersey in 2016 and in 2018, Minnesota in 2018, Pennsylvania in 2018, Washington in 2019, Texas in 2019, and New Mexico in 2019.
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. All of the most recent to-be-passed bill attempts are still currently pending.
We encourage you to call your federal and state representatives to urge them to take action against the heinous gay and trans “panic” defense.
Please note that this is not a complete list of cases in which the gay and trans “panic” defense has been employed.
DANIEL SPENCER (2015) – Daniel 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.
JENNIFER LAUDE (2014) – US Marine Scott Pemberton was stationed in Olangapo City, Philippines, when he picked up a sex worker named 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. This case is currently under appeal.
EVER OROZCO (2013) – Ever 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.
MARCO MCMILLIAN (2013) – Marco 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.
FRANCISCO GONZALEZ FUENTES (2011) – Pedro 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.
TERRANCE HAUSER (2008) – Terrance 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.
LARRY KING (2008) – Larry King, 15, was an openly gay student who expressed himself by wearing makeup, accessories, and high heels. King asked fellow student Brandon McInerney to be his valentine, and McInerney shot King execution-style in the head. McInerney’s attorney claimed that his client was sexually harassed by King and, therefore, was not culpable for his death. The jury could not reach a unanimous decision and the case was declared a mistrial.
ANGIE ZAPATA (2008) – In 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.
GUIN “RICHIE” PHILLIPS (2003) – Guin “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.
GWEN ARAUJO (2002) – Gwen 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.
AHMED DABARRAN (2001) – Ahmed 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.
SCOTT AMEDURE (1995) – Talk 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.