The LGBT Bar, the largest LGBTQ+ and Ally Legal Community, explains that 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, where it has absolved the perpetrators of aggressive and hostile actions against LGTBQ folks; actions which are often violent crimes, including, especially in the case of trans women, murder.
Three other states – California, Rhode Island and Illinois – have passed legislation banning the practice. New York is now weighing a similar bill.
“According to research from the Williams Institute at the UCLA School of Law, these defenses have been used or attempted to be used in approximately half of the states at one time or another,” Sen. President Pro Tem Martin Looney said. “We’ve had reports of it in Connecticut, especially in circumstances where someone solicits a prostitute and the prostitute turns out to be other than the customer intended and reacts violently. … The result in many cases has led to a reduction in charges for some offenders.”
Calling the the new legislative initiatives “the unfinished legacy of the Matthew Shepard case,” USA Today went on to say about the practice:
“The tactic plays into stereotypes and stigmas based on transphobia and homophobia, said Trevon Mayers, policy and community outreach director at New York’s LGBT Community Center. In essence: “I only killed him because he was coming on to me,” he said.
The practice “is based in prejudice and should never be available in any American courtroom,” Persad said. “These ‘defenses’ send the destructive message that LGBTQ victims are less worthy of justice.”
While some courts and legislatures have begun to curb the use of gay and trans panic defenses, many states are lagging behind. “In order to ensure that gay/trans panic defenses are not seen as a valid excuse,” says LGBT Bar, “courts should instruct juries to make decisions without bias or prejudice.”
They also recommend that local legislatures should specify that neither non-violent sexual advances nor the discovery of a person’s gender identity can be adequate provocation for murder. And finally, and most importantly they urge “local governments need to educate courts, prosecutors, defense council, and the public about the devastating individual and legal consequences of gay/trans ‘panic’ defenses.”