A Short Story
Imagine this scenario. You’re watching your favorite legal drama. Today’s episode deals with a man who has been charged with murdering his neighbor. The facts of the murder are straightforward: a stabbing that occurred in the home of the victim; it seems obvious to you that the accused will be found guilty. Imagine your surprise when the accused claims that he should receive a lesser sentence because he only stabbed his neighbor out of “gay panic” after the victim moved in for a kiss. Imagine your further surprise when this defense works, and the accused gets away with murder without spending a single day behind bars.
This is the story of David Spencer, who was murdered in his own home by a man who used the LGBTQ+ Panic Defense to get away with murder. Sadly, this story is not unique to Spencer. The LGBTQ+ Panic Defense has been used to excuse violent and often deadly hate crimes against members of the LGBTQ+ community throughout the history of the United States, including Gwen Araujo (a transgender woman who was beaten to death), Jennifer Laude (a transgender woman who was strangled to death), and so many more.
What is the LGBTQ+ Panic Defense, and Why is it So Problematic?
The LGBTQ+ Panic Defense, also known as the “gay panic defense” when violence is committed against a non-heterosexual individual, or the “trans panic defense” when violence is committed against a non-cisgender individual, is a legal strategy which is used to mitigate the sentence of someone accused of a violent hate crime against a member of the LGBTQ+ community. The LGBTQ+ Panic Defense is used to partially excuse the actions of the accused on account of them being overcome by a “panic” or “blind fury,” as was used as a defense in one notable case of “trans panic,” in discovering the gender identity or sexual orientation of the victim. Per the American Bar Association, the LGBTQ+ Panic Defense is commonly used in one of three ways: as a marker of diminished capacity or temporary insanity, as a valid source of provocation, or as a way to bolster claims of self-defense. Defendants charged hate crimes have been successful in using the LGBTQ+ Panic Defense to mitigate their sentences, resulting in them serving less (or no) jail time.
While it may seem like something from the dark ages, the LGBTQ+ Panic Defense is alive and well in 42 out of 50 states. In 2013, the American Bar Association adopted a resolution calling for states to abolish the LGBTQ+ Panic Defense as a defense strategy. Since then, the number of states to pass legislation banning the LGBTQ+ Panic Defense increased from 2 to 8 with 6 more states considering such legislation. However, even if these six states pass bills banning the LGBTQ+ Panic Defense, courts still legally recognize this defense in partially or fully excusing hate crimes against the LGBTQ+ community in more than half the country.
What’s more concerning than the statistics is the logic behind the LGBTQ+ Panic Defense. At its core, the LGBTQ+ Panic Defense stands for the idea that LGBTQ+ community members are somehow at fault for violence against them simply because of their gender identity or sexual orientation, and that the lives of LGBTQ+ community members are worth less than the lives of cisgender and heterosexual individuals. The LGBTQ+ Panic Defense places the responsibility on the LGBTQ+ individual to actively avoid hate crimes, rather than on the attacker to control their actions in response to gender identity or sexual orientation. Moreover, the LGBTQ+ Panic Defense, which is rooted in a history of homophobia, transphobia, and violence against the LGBTQ+ community, only serves to perpetuate violent hate crimes against the LGBTQ+ community.
Those in favor of keeping the LGBTQ+ Panic Defense argue that for some people, violence against members of the LGBTQ+ community is an understandable reaction to being on the receiving end of “perverse” sexual advances, and that expecting people to control their violent impulses is unfair. However, this argument only further emphasizes the fact that violence against the LGBTQ+ community is based on toxic homophobia and transphobia that seeks to justify violence against LGBTQ+ individuals. This is why banning the LGBTQ+ Panic Defense is essential for the safety of the LGBTQ+ community and for the forward progress of society. Elimination of the LGBTQ+ Panic Defense would hold people accountable for their violent actions against the LGBTQ+ community, rather than prioritizing respect for homophobia/transphobia over the lives of LGBTQ+ individuals, and would further normalize the presence of LGBTQ+ persons in society.
The Future of the LGBTQ+ Panic Defense
Progress has been made to eliminate the LGBTQ+ Panic Defense as a viable defense to hate crimes. Following the American Bar Association’s resolution, two Democratic Congressmen introduced a bill that would ban the LGBTQ+ Panic Defense in all federal courts, claiming that, “[l]egal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual and transgender neighbors should never have existed in the first place.” However, given the makeup of Congress and the fact that LGBTQ+ issues are unfortunately often seen as partisan issues rather than human issues, it’s unlikely that this bill will gain the support needed to pass. Moreover, it’s highly unlikely that a ban on the LGBTQ+ Panic Defense will garner much support from the executive branch, given the Trump Administration’s track record with LGBTQ+ issues, including but not limited to the transgender military ban, ongoing transgender erasure, removal of the LGBTQ+ page from the white house website, and proposed expansions to religious exemptions that would allow more discrimination against the LGBTQ+ community.
Despite the current state of affairs regarding the LGBTQ+ Panic Defense, its elimination of will likely occur in the future, even if it’s not as soon as LGBTQ+ rights advocates would hope. For one thing, violence against any demographic of individuals should be a bipartisan concern, particularly in relation to the present issue given that the prevalence of hate crimes is disproportionately high in the LGBTQ+ community. Per the LGBT Bar Association, one in every four transgender individuals will be the victim of a hate crime in their lifetime; for the remainder of the LGBTQ+ community, it’s one in every five. Since about 4.5% of the United States population identifies as LGBTQ+, that’s millions of voters for Congress to be concerned about. Not only that, but within the United States population, there is a large generational gap when it comes to individuals who are supportive of LGBTQ+ equality and rights, with older generations being less accepting and younger generations being more supportive. As our population continues to age, the generations who are less tolerant and more bigoted will no longer be in the voting pool, and LGBTQ+ issues will likely become more of a priority for the millennial generation, 20% of whom identify as members of the LGBTQ+ community.
Elimination of the LGBTQ+ Panic Defense will likely face many roadblocks in the immediate future, particularly a republican-majority congress and a discriminatory presidential administration. However, given the increase in support for the LGBTQ+ community from younger generations, it’s unlikely that violent homophobes and transphobes will be able to blame their inability to control their bigotry and rage on their “panic” over the LGBTQ+ community for much longer.