What is the LGBTQ+ “panic” defense?

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 recognized cases that employed the LGBTQ+ “panic” defense was that of Matthew Shepard. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. The men attempted to use the LGBTQ+ “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today.

What is the difference between the “gay/trans panic” defense and the “LGBTQ+ panic” defense?

The LGBT Bar uses “LGBTQ+ panic” rather than “gay/trans panic” because the former is an inclusive phrasing which recognizes that the defense strategy impacts all folks in the LGBTQ+ community. To refer to it as “gay/trans panic” excludes violence against those who do not identify as gay or transgender.

How is the defense used in court?

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 This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.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.

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 This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.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.

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.

Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups?

The LGBTQ+ “panic” defense frequently draws on stigmas particular to LGBTQ+ people, their sexualities, and their genders to justify horrific violence against LGBTQ+ individuals. The defense is rooted in homophobia and transphobia. Considering intersectionality, particular individuals have higher likelihoods of being victims of hate crimes. As we have seen in 2019, there has been an increase of transgender women of color being victims of hate crimes.

I n the United States, the estimated adult LGBTQ+ community makes up 4.5 percent, an estimated 14.6 million people.

Hate crime statistics from the FBI show, however, that LGBTQ+ people are disproportionately targeted: In 2017, there were 1249 recorded hate crimes against people for their sexual orientation and gender identity. These hate crimes made up a combined 17.6 percent of motivation in single-bias hate crime incidents—a four percent increase from 2016.

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 1 out of 4 transgender people will.

We cannot maintain this unjust status quo!

How successful is the LGBTQ+ “panic” defense?

Juries have acquitted dozens of murderers of their crimes through a defense team’s use of an LGBTQ+ “panic” defense strategy. As recently as April 2018, an LGBTQ+ “panic” defense was used to mitigate a murder charge.