Most States Still Accept ‘Gay Panic Defense’ In Cases of Anti-Gay Violence
Homophobia is alive a strong while the LGBTQ community remains under constant fire in many states as an archaic law remains in force in most states that allows people accused of violent crimes to blame their acts on their victim’s sexual orientation.
In most states, defendants accused of violent crimes can claim the “gay panic defense” that “the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder,” according to the LGBT Bar.
The Harvard Civil Rights Law Review noted that the LGBTQ+ Panic Defense essentially claims 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 review said 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,” the review reported.
Moves to prohibit the gay panic defense lost steam during the trump administration with the administration and many Republicans supporting assaults on the LGBTQ community, including 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.
The LGBT Bar Association reported that 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.
The “gay and trans panic” defense dates back to the 1960s. It’s been on the books for more than 60 years but the state of New Hampshire finally abolished its gay and trans panic defense law on June 29. The law which has its origins in homophobic stereotypes still remains in force in most states. That leaves Massachusetts as the only state in New England that still accepts the gay and trans panic defense.
New Hampshire House Democrats applauded passage of the bill, HB 315, even if it was such a long time coming.
“After years of legislative advocacy, @NHHouseDems are thrilled that HB 315 was signed into law today and this dangerous legal measure no longer stands in New Hampshire,” the Democrats tweeted.
Democratic state Rep. Matt Wilhelm said he was “proud” the bill was passed.
“At a time in our state & nation when LGBTQ+ people are being targeted with violence and hatred for merely existing… I am proud that the House took a strong stand against the ‘Gay Panic Defense’ today and urge @GovChrisSununu to promptly sign HB 315,” Wilhelm tweeted.
Opponents of the New Hampshire bill insisted that they were not homophobic but were concerned that the bill would infringe on the right to self-defense.
The American Bar Association issued a unanimous resolution in 2013 calling on states to ban the gay and trans panic defenses. But it took until 2014 for California to introduce the first ban on the defense. The effort was led by then state attorney general and now vice president, Kamala Harris.
Legislation to ban gay or trans defense has stalled in some states. In Texas, a bill to ban the use of the defense, introduced by Democratic state Rep. Gina Hinojosa in November 2020, failed along party lines to make it out of committee.
In 2018, Sen. Edward Markey, D-Mas., and Rep. Joseph Kennedy III, D-Mass., introduced federal legislation, S.3188 and H.R.6358, respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.
The federal Gay and Trans Panic Defense Prohibition Act of 2021 was introduced in the Senate on April 15, 2021, but it languished in the Senate Judiciary Committee. The bill prohibits a federal criminal defendant from claiming that a “nonviolent sexual advance of an individual or a perception or belief of the gender, gender identify or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense.”
The bill was renamed the “LGBTQ+ Panic Defense Prohibition Act of 2023” and was re-introduced in the Senate by Markey and in the House by Rep. Chris Pappas, D-N.H. On July 12, 2023, the legislation was again referred to the Senate Judiciary Committee.
The gay panic defense grew out of a combination of legal defenses from the mid-19th century and a mental disorder described in the early 20th century, seeking to apply the legal framework of the temporary insanity defense, provocation defense, or self-defense, often by claiming the victim suffered under a mental condition, “homosexual panic disorder.”
Psychiatrist Edward J. Kempf (1886–1971), coined the term “homosexual panic” in 1920 and identified it as a condition of “panic due to the pressure of uncontrollable perverse sexual cravings.” The disorder was briefly included in DSM-1 (diagnostic and statistical manual of mental disorders) as a supplementary term but did not appear in any subsequent editions of DSM and is not considered a diagnosable condition by the American Psychiatric Association.
In using the gay and trans panic defense, the defendant uses a victim’s sexual orientation or gender identity to claim the defendant was provoked and “panicked,” sometimes resulting on a violent reaction on a queer victim.
No state recognizes gay and trans panic defenses as a primary defense in violent crimes. But defendants have used panic defense in conjunction with other defense strategies to reduce the severity of their charges or sentencing.
Cases typically have centered on unwanted flirtations and sexual advances, or violent reactions after discovery of someone’s trans identity. The gay and trans panic defense often focuses on stereotypes of queer people, mainly queer men, as predators.
A recent example of a successful use of the defense came in May 2022, in the case of former Virginia Tech football player Isimemen Etute. Estute was found not guilty of second-degree murder in the 2021 beating death of Jerry Smith, a gay man who Estute initially believed to be a woman based on Smith’s Tinder profile. Estute had met Smith in an on-line catfishing scheme and after meeting at Smith’s apartment, Estute realized Smith was a man. Estute used the gay panic self-defense argument that he feared for his life after allegedly seeing the victim “make a reach” toward his bed where a knife was later found.
In July 2020, Mack Bond, 58, a Memphis, Tenn., a 21-year veteran firefighter and gay man, was shot to death in his car. Carlton Wells and Danielle Mack were charged a few days later in the killing. Wells told police that he shot the firefighter multiple times after Bond allegedly propositioned Wells and his girlfriend for sex, making Wells uncomfortable. A grand jury refused to indict Wells on first degree murder but instead, in October 2020, indicted and convicted him on second-degree murder, possessing a handgun with a felony conviction and evidence tampering.
In 2018, James Miller of Texas escaped a murder or manslaughter charge, but he was found guilty of criminally negligent homicide after stabbing Daniel Spencer to death in 2015. Miller told police that Spencer got angry after Miller rejected sexual advances and became violent.
In another case, Joseph Bidermann was found not guilty of murder in 2009 in Illinois after he stabbed Terrance Hauser 61 times. Biedermann said he stabbed Hauser after Hauser allegedly drew a sword and threatened to sexually assault him.
In 1995, the tabloid talk show, The Jenny Jones Show, filmed an episode titled “Revealing Same Sex Secret Crush.” Scott Amedure, a 32-year-old gay man, revealed on the program that he was a secret admirer of Jonathan Schmitz, a 24-year old straight man. Three days later, Schmitz confronted and killed Amedure. A first degree murder charge was later downgraded to second degree murder after Schmitz invoked the gay panic defense.
One of the earliest, successful uses of the gay panic defense is the so-called “Candlestick Murder” on Nov. 1, 1958, in Charleston, S.C. The victim, a 30-year-old gay man, Jack Dobbins, was bludgeoned to death by a candlestick. The accused killer, John Mahon, was found not guilty after claiming that he used the gay panic defense and claimed he was defending himself from unwanted advances by Dobbins.
The FBI does not keep data on the sexuality of murder victims and state records are often vague. Carsten Andresen, a criminal-justice professor at St. Edward’s University in Austin, Texas, has done research that shows that since the 1970s, gay- and trans-panic defenses have reduced murder charges to lesser offenses in 40 percent of roughly 200 cases that he has identified. In just over 5 percent of cases, Andresen found that the perpetrator was acquitted or the charges dropped.
The “gay panic” defense has often failed. After torturing and murdering 22-year-old Matthew Shepard in 1998, his killers tried to claim that they’d been driven to kill Shepard, who was gay, partly because he’d made an “unwanted sexual advance.” Shepard was a student at the University of Wyoming when he was beaten, tortured, and left to die near Laramie on the night of Oct. 6, 1998. Shepard’s killers were both convicted, leading to creation of the national anti-hate crime law. The judge in the case, however, said that Shepard was murdered in “part because of his lifestyle.”
State law allows gay panic defense in Montana, Idaho, Wyoming, South Dakota, North Dakota, Utah, Arizona, Kansas, Oklahoma, Missouri, Louisiana, Alabama, South Carolina, Tennessee, Kentucky, Indiana, Ohio, West Virginia and Alaska.
State law bans gay panic defense in Washington,Oregon, San Francisco, Nevada,Colorado, New Mexico, Illinois, Maine, New Hampshire, Vermont, New York, Connecticut, Rhode Island, New Jersey, Maryland, and Virginia.
States have proposed bans on gay panic defense but haven’t passed laws in Texas, Arkansas, Nebraska, Iowa, Minnesota, Wisconsin Michigan, Pennsylvania, Massachusetts, North Carolina, Georgia and Florida.
The gay and trans panic defense is recognized around the world. In Australia, it is known as the “homosexual advance defense.” As of 2023, all Australian states have either abolished the provocation defense altogether or have restricted its application.
The defense has been used in New Zealand, the Philippines and the United Kingdom and elsewhere.
In New Zealand, a gay interior designer and former television host, David McNee, was killed in 2003 by a part-time sex worker, Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a “no-touch” basis for money. Edwards claimed that he was provoked into beating McNee after he violated their “no touching” agreement. Edwards was jailed for nine years for manslaughter.
Another New Zealand case in July 2009, involved Ferdinand Ambach, 32, a Hungarian tourist, who was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument’s neck down Brown’s throat. Ambach was charged with murder but the charge was downgraded to manslaughter after Ambach’s lawyer successfully invoked the gay panic defense.
In the Phillipines, U.S. Marine Lance Cpl. Joseph Scott Pemberton of Massachusetts was convicted of homicide in the killing of Jennifer Laude in a motel room in Olongapo in 2014. Police said that Pemberton became enraged after discovering that Laude was transgender. After Pemberton served six years of a 10-year sentence, President Rodrigo Duterte gave him an absolute pardon.