What is the LGBTQ+ “panic” defence?
The LGBTQ+ “panic” defence, also commonly referred to as the ‘gay/trans’ panic defence, is a legal strategy in which a defendant claims they acted in a state of violent “temporary insanity,” such as committing assault or murder, due to unwanted same-sex sexual advances. In other words, it means a person can kill or assault an LGBTQ+ individual and claim that they did so because the victim made a same-sex pass at them or attempted a same-sex sexual assault. This defence essentially asks a jury to find that a victim’s sexual orientation or gender identity is to blame for a defendant’s violent reaction, including murder.
Why is this wrong?
When a perpetrator uses an LGBTQ+ “panic” defence, they are claiming that a victim’s sexual orientation or gender identity not only explains—but excuses—a loss of self-control and subsequent assault. The American Bar Association calls these defences “surprisingly long-lived historical artifacts” of a time when hatred of LGBTQ+ people was widespread. “These defences enshrine in the law the notion that LGBT lives are worth less than others,” wrote the ABA.
What is an example of this in practice?
The defence is not uncommon. In its 2013 condemnation of “gay panic” and “trans panic” defences, the American Bar Association listed numerous infamous cases of its use. Here is an extract from the statement made by the ABA:
“When Matthew Shepard, age 21, made a pass at two men in a gay bar, he should have expected to be beaten, pistol-whipped, tied to a fence, and left to die. When Emile Bernard was stabbed, beaten and blinded after coming on to a hitchhiker, his assailant claimed he could not be guilty since the victim ‘was asking for trouble’ by making sexual advances. If Angie Zapata, age 18, hadn’t initially ‘hidden’ that she had male anatomy, her attacker would never have bludgeoned her to death with a fire extinguisher. And when a fellow student shot Larry King, age 15, execution-style in front of their teacher and classmates, his actions were understandable because Larry wore dresses and heels and said ‘Love you, baby!’ to him the day before. These are actual defences, offered by real defendants, in United States courts of law that have succeeded in mitigating or excusing real crimes, even today.”
One other famous case occurred in 2015, when Daniel Spencer, a guitarist, invited another musician, James Miller, to his apartment to play music together. Later that night, Miller stabbed Spencer twice in the back, killing him.
The fact that Miller killed Spencer in 2015 by stabbing him twice was never in dispute. But Miller claims Spencer came on to him, then got angry after being turned down. Miller’s lawyers argued that although there was no physical altercation, he felt in danger because at age 66, he was older and shorter, so he killed the 32-year-old gay man in his own home.
While there was no evidence to suggest an attempted sexual assault, Miller’s attorney claimed that, since Miller had never been in trouble with the police before, the only thing that could explain his committing murder was that Spencer had tried to assault him sexually.
In this instance, the gay panic defence was successful. The jury convicted Miller of criminally negligent homicide, the lowest grade of a felony in Texas. The court punished Miller with only a six-month jail term and a 10-year probation sentence.
It’s unnerving to see such a mechanism being used – and accepted – in so many courts of law, and in a society as open and accepting as today’s, it’s high time this highly discriminatory defence was overruled.
