With No Federal Protection, 39 States Still Allow 'Gay Panic' Defense

In 2018 two Massachusetts legislators – Senator Edward Markey and representative Joseph Kennedy III – introduced legislation that would ban the "gay panic" defense on a federal level. Both bills failed, which leaves the defense intact in 39 states, reports The Economist.

"The gay/trans panic legal defense legitimizes and excuses violent and lethal behavior against members of the LGBTQ+ community," the American Bar Association writes on its website. "The defense is defined by the LGBT Bar as '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.'"

"These defenses are based in irrational fears and prejudice toward LGBTQ people, and they imply that violence against LGBTQ people is acceptable or understandable under certain conditions," writes the Movement Advancement Project. "The American Bar Association issued a unanimous resolution in 2013 calling on 'federal, tribal, state, local, and territorial governments' to prohibit the use of this defense, but many states still permit this practice."

In their report, the Economist cites the murder of Daniel Spencer, an Austin-based LGBTQ film editor stabbed to death by his neighbor, James Miller, in 2015. "The case was harrowing. But a legal quirk uncovered during the trial made it even worse. Mr Miller introduced the 'gay-panic' defence in court, arguing that at some point on the night of the murder, Mr Spencer had tried to kiss him. The victim's apparent homosexuality had made Mr Miller fearful for his safety and thus diminished his responsibility." Despite defending himself by stabbing Spencer in the back, Miller was sentenced to just six months in jail, with ten years on probation.

"The case was no anomaly. The 'gay-panic' defence remains legally admissible in 39 states according to the Movement Advancement Project, a think-tank. It normally bolsters either insanity or self-defence claims, and its use goes back decades," The Economist continues.

But it is also difficult to track. "The FBI keeps no data on the sexuality of homicide victims, and state-by-state records on hate crimes are spotty, so numbers can be difficult to pin down," The Economist continues. "But Carsten Andresen, a criminal-justice professor at St Edward's University in Austin, Texas, has been busy compiling a database. His research shows that since the 1970s, gay- and trans-panic defences have reduced murder charges to lesser offences in 40% of the roughly 200 cases that he has identified. In just over 5% of cases, the perpetrator was acquitted or the charges dropped."

In 2014 California under then Attorney General Kamala Harris introduced the first state bill to ban the practice. "Since then, ten more states have followed, most recently Colorado in July of this year. Proposed bans are in committee stages in a handful elsewhere, including Texas and Minnesota, but 30 statehouses remain silent on the issue," writes The Economist. "And the fact that a third of cases since 1970 have occurred in the past ten years suggests that the problem may be worsening, or at least that 'every step forward is followed by several steps back', says Mr Andresen."