tw: homphobia, transphobia, murder, assault
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It has come to my attention that such a thing as the "LGBTQ+ panic legal defense" exists. This defense, in 38 US States, legally allows anyone who assaults or murders any LGBTQ+ member to claim they did so because they went into a state of mental confusion upon finding out that person was transgender, nonbinary or otherwise not heterosexual. In 38 states, this defense allows criminals who commit homophobic crimes to have reduced sentences or to get off scot-free.
As the LGBT Bar explains it, "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 widely known cases that used the "LGBTQ+ panic" defense, according to the LGBT Bar as well, was Matthew Shepard. In 1998, Matthew, a 21-year-old gay college student, was beaten to death by two men because he was gay. These men then claimed that Matthew's sexuality was the reason they reacted so violently to him.
So how is this defense used in court, specifically?
According to the LGBT Bar:
"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 This defense is based on an outdated psychological term, "gay panic disorder", which was debunked by the American Psychiatric Association and removed from the DSM in 1973.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."
And you'd be shocked at how successful this defense can be. Dozens of murderers have gotten off free through this defense, as recently as 2015, with the most recently mitigated murder charge being in 2018. A mitigated charge essentially forces the jury to take into consideration circumstances like the age of the defendant, the situation specifically on trial (like danger, maybe weather, etc.), mental health issues, cognitive capacity, disabilities, and so on. This means that in 2018, a murderer received a reduced sentence due to this "panic" defense.
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States that allow this defense:
Idaho
Montana
Wyoming
Utah
North Dakota
South Dakota
Arizona
Alaska
Kansas
Oklahoma
Missouri
Arkansas
Louisiana
Mississippi
Alabama
Georgia
South Carolina
Michigan
West Virginia
Kentucky
Ohio
Indiana
Delaware
Tennessee
States that are considering legislation to ban this defense in court:
Oregon
New Mexico
Texas
Nebraska
Iowa
Minnesota
Wisconsin
Pennsylvania
Florida
North Carolina
Maryland
Massachusetts
Vermont
New Hampshire
States that have BANNED this defense:
California
Washington
Nevada
Colorado
Illinois
Virginia (banned as of 04/02/2021)
New York
New Jersey
not a state but the District of Columbia
Connecticut
Rhode Island
Maine
Hawai'i
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Frankly, there isn't much we can do besides pushing for proper legislation that protects our community. Straight allies, this is where you come in. Help us push for change. You make up the majority of the United States: adult LGBTQ+ make up 5.6%, only 18.4 million people in a country of 332.6 million people. And yet somehow we make up almost 19% of hate crimes. As the LGBT Bar states, "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 more than 1 out of 4 transgender people will."
Email your representatives. Push for legislation that protects our community. If you do nothing about this, you are complicit in hate crimes against the LGBTQ+ being allowed to occur and go unpunished.
Speak up.
Help us.
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