In the fall of 1998, a polite, unassuming gay student in Wyoming was pistol-whipped, tortured and bound to a wooden fence for 18 hours, his body crusted in blood and slumped in dirt.

The savage assault and death of Matthew Shepard sent ripples of horror across the nation, catapulting issues of homophobia and hate crimes to the forefront amid protests, vigils and calls for legislation.

The case also thrust a new term into the public consciousness: the so-called “gay panic defense.”

More than 20 years later, only three states have taken action to ban gay/transgender panic defenses. New York could soon become the fourth as the Legislature weighs the issue this week. LGBTQ advocates are hoping the state will be a game-changer in building momentum across the country.

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“It is long past time that every state ban perpetrators of violent crimes from asserting a victim’s LGBTQ identity as a potential defense for their violent actions,” said Xavier Persad, senior legislative counsel at the Human Rights Campaign.

A gay panic defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for a defendant’s actions – even homicide, according to the National LGBT Bar Association.

The tactic plays into stereotypes and stigmas based on transphobia and homophobia, said Trevon Mayers, policy and community outreach director at New York's LGBT Community Center. In essence: "I only killed him because he was coming on to me," he said.

The practice “is based in prejudice and should never be available in any American courtroom,” Persad said. “These 'defenses' send the destructive message that LGBTQ victims are less worthy of justice.”

How the defenses work

The panic tactics aren’t free-standing defenses in the criminal code, but they are usually tapped in one of three ways to boost another line of defense:

• Insanity defense or diminished capacity: A defendant claims a sexual proposition triggered an emotional breakdown, sparking a gay or transgender “panic.”

• Provocation defense: A defendant argues that a victim’s proposition prompted the defendant’s violent behavior.

• Self-defense: The accused says they feared that a victim, because of sexual orientation or gender identity, could cause the defendant bodily harm.

The issue is complicated, and many people in the mainstream aren't aware of how troubling it is, acknowledges Milo Primeaux, civil rights attorney and CEO of Just Roots Consulting. "It's a backdoor approach to discrimination."

In the Shepard case, the defendants, who were never charged with a hate crime, invoked the gay panic strategy, claiming they exploded in outrage when Shepard made a sexual advance. That defense was ultimately rejected, and the duo were convicted of murder and sentenced to life.

But the tactics have lived on within laws across the nation.

Panic defenses have surfaced in court opinions in about half of all states since the 1960s, according to a 2016 study by the Williams Institute, a think tank at UCLA Law. And alarming to LGBTQ advocates: Many of those cases have been in the past 20 years.

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The use of the defense in recent time "doesn't surprise me," said Primeaux, who cites a rise in crimes against the LGBTQ community, particularly transgender people. Gay panic claims are not isolated issues, he said, but are "part of a pattern of violence."

In 2013, the American Bar Association approved a resolution calling on all state legislatures to prohibit the practice. California was the first to adopt a ban in 2014; Illinois followed in 2017; Rhode Island in 2018.

New York saw its own high-profile case with the murder of Islan Nettles, 21, a fashion company assistant who was beaten to death in Harlem in 2013. James Dixon claimed in a 2016 trial that he seethed after flirting with Nettles and then discovering she was transgender.

In a recorded confession played at a pretrial hearing, Dixon didn’t deny killing Nettles. But he said he was provoked and recalled “lashing out” after a friend mocked him. “I just didn’t want to be fooled,” he said.

Dixon accepted a deal, pleading guilty to first-degree manslaughter, and was sentenced to 12 years, a term decried by family members and activists as too lenient.

'A catalyst for progress'

Bills to prohibit panic defenses have emerged in the New York Legislature before but have died in committee. Advocates are optimistic 2019 will chart a new course.

Before this year, New York had not passed any LGBTQ legislation since 2011, Mayers said. But in January, bills barring transgender discrimination and conversion therapy for minors became law. This year also marks the 50-year anniversary of the Stonewall Riots, the Greenwich Village uprising that sparked the LGBTQ equal rights movement in the U.S.

"There is a larger spotlight on New York for folks to prove that the state is the civil rights leader it says it is," Mayers said. "The Legislature is making it a point to champion longstanding protections we haven't seen before."

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Gay panic defenses are "purely antithetical" to landmark legislation passed 10 years ago intended to protect the LGBTQ community – the Hate Crimes Prevention Act, also known as the Matthew Shepard Act – and it's time to take more steps forward, Primeaux said.

Striking gay panic defenses nationwide would "complete the legacy of the Matthew Shepard case," Mayers said. "I am hoping that whatever happens in New York can be a catalyst for progress around the country."

Contributing: The Associated Press



