Trans Panic Defense
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The gay panic defense or homosexual advance defense is a
victim blaming Victim blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them. There is historical and current prejudice against the victims of domestic violence and sex crimes, such as ...
strategy of
legal defense In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a s ...
, which refers to a situation in which a heterosexual individual charged with a violent crime against a
same-sex attracted Terms used to describe homosexuality have gone through many changes since the emergence of the first terms in the mid-19th century. In English, some terms in widespread use have been '' sodomite'', ''Sapphic'', '' Uranian or Urning'', ''homophi ...
individual claims they lost control and reacted violently because of an unwanted sexual advance that was made upon them. A defendant will use available legal defenses against
assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...
and
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
, with the aim of seeking an acquittal, a mitigated sentence, or a conviction of a lesser offense. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in
self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of Force (law), ...
, were of
diminished capacity In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental fun ...
, or were temporarily insane, and that this circumstance is
exculpatory Exculpatory evidence is evidence (law), evidence favorable to the defendant in a criminal law, criminal trial that exonerates or tends to exonerate the defendant of guilt (law), guilt. It is the opposite of inculpatory evidence, which tends to pr ...
or
mitigating Mitigation is the reduction of something harmful that has occurred or the reduction of its harmful effects. It may refer to measures taken to reduce the harmful effects of hazards that remain ''in potentia'', or to manage harmful incidents that ...
. The is a closely related legal strategy applied in cases of assault or murder of a
transgender A transgender (often shortened to trans) person has a gender identity different from that typically associated with the sex they were sex assignment, assigned at birth. The opposite of ''transgender'' is ''cisgender'', which describes perso ...
individual whom the assailant(s) had engaged with, or were close to engaging with, in sexual relations, and claim(s) to have been unaware that the victim was transgender, producing in the attacker an alleged trans panic reaction. In most cases, the violence or murder is perpetrated by a heterosexual man against a heterosexual
trans woman A trans woman or transgender woman is a woman who was assigned male at birth. Trans women have a female gender identity and may experience gender dysphoria (distress brought upon by the discrepancy between a person's gender identity and their ...
. Broadly, the defenses may be called the "gay and trans panic defense" or the "LGBTQ+ panic defense".


History

The gay panic defense grew out of a combination of legal defenses from the mid-nineteenth century and a mental disorder described in the early twentieth, seeking to apply the legal framework of the temporary insanity defense, provocation defense, or self-defense, often by using the mental condition of " homosexual panic disorder".


Homosexual panic disorder

Homosexual panic seen as a mental health disorder is distinct from the homosexual panic defense within the legal system. Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the legal defense implies only a temporary loss of self-control. Edward J. Kempf, a psychiatrist, coined the term "
homosexual panic "Homosexual panic" is a term coined by American psychiatrist Edward J. Kempf in 1920 for a condition of " panic due to the pressure of uncontrollable perverse sexual cravings". Kempf classified this condition as an acute pernicious dissociati ...
" in 1920. He identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings," and classified it as an acute pernicious
dissociative disorder Dissociative disorders (DDs) are a range of conditions characterized by significant disruptions or fragmentation "in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control, and behavior. ...
, meaning that it involved a disruption in typical perception and memory functions. Kempf identified the condition during and after World War I at
St. Elizabeths Hospital St. Elizabeths Hospital is a psychiatric hospital in Southeast, Washington, D.C., Southeast Washington, D.C. operated by the District of Columbia Department of Mental Health. The hospital opened in 1855 under the name Government Hospital for th ...
in Washington, D.C. The disorder was briefly included in DSM-1 as a supplementary term in Appendix C but did not appear in any subsequent editions of DSM and thus is not considered a diagnosable condition by the
American Psychiatric Association The American Psychiatric Association (APA) is the main professional organization of psychiatrists and trainee psychiatrists in the United States, and the largest psychiatric organization in the world. It has more than 39,200 members who are in ...
. Unlike the legal defense created later and named after it, the onset of the condition was not attributed to unwanted homosexual advances. Rather, Kempf stated that it was caused by the individual's own "aroused homosexual cravings".


Types of defenses

The gay panic defense strategy usually falls into three categories of defenses: the
provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur An is a person who actively entices another person to commi ...
defense,
self defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in tim ...
(including imperfect self defense) and
insanity Insanity, madness, lunacy, and craziness are behaviors caused by certain abnormal mental or behavioral patterns. Insanity can manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to other ...
based defenses (including temporary insanity, irresistible impulse, and
diminished responsibility In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental funct ...
). The gay panic defense is not a stand-alone defense, but rather a legal tactic used by the defense which seeks to obtain an acquittal, a mitigated sentence, or a conviction of a lesser offense. The defense is commonly defined by the attempt to shift the blame onto the victim's sexual orientation or gender identity of the victim as a form of
victim blaming Victim blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them. There is historical and current prejudice against the victims of domestic violence and sex crimes, such as ...
.


Jurisdictions


Australia

In Australia, it is known as the "homosexual advance defence" (HAD). Of the status of the HAD in Australia, Kent Blore wrote in 2012: In Australia, as of 2023, all
Australian states The states and territories are the national subdivisions and second level of government of Australia. The states are partially sovereign, administrative divisions that are self-governing polities, having ceded some sovereign rights to the feder ...
have either abolished the provocation defense altogether (
Tasmania Tasmania (; palawa kani: ''Lutruwita'') is an island States and territories of Australia, state of Australia. It is located to the south of the Mainland Australia, Australian mainland, and is separated from it by the Bass Strait. The sta ...
in 2003,
Victoria Victoria most commonly refers to: * Queen Victoria (1819–1901), Queen of the United Kingdom and Empress of India * Victoria (state), a state of Australia * Victoria, British Columbia, Canada, a provincial capital * Victoria, Seychelles, the capi ...
in 2005,
Western Australia Western Australia (WA) is the westernmost state of Australia. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Aust ...
in 2008 and
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...
in 2020), or have restricted its application.
Queensland Queensland ( , commonly abbreviated as Qld) is a States and territories of Australia, state in northeastern Australia, and is the second-largest and third-most populous state in Australia. It is bordered by the Northern Territory, South Austr ...
restricted the defense of provocation in 2011, and further restricted it in 2017 (with a clause to allow it in 'exceptional circumstances' to be determined by a magistrate). In a differing approach,
New South Wales New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...
, the ACT and
Northern Territory The Northern Territory (abbreviated as NT; known formally as the Northern Territory of Australia and informally as the Territory) is an states and territories of Australia, Australian internal territory in the central and central-northern regi ...
have implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) are not a valid defense. In New South Wales, the law on provocation was amended to provide that the provocative conduct of the deceased must also have constituted a serious indictable offense. Garry Wait, a 20-year-old waiter, mounted an unsuccessful gay panic defence after being charged with the murder of 63-year-old former federal MP Bill Arthur in 1982. Wait pleaded not guilty to murder but guilty to manslaughter, on the grounds that Arthur had made "homosexual advances". The jury rejected his account of the killing, convicting him of murder. He was subsequently sentenced to life imprisonment.
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...
was the first Australian jurisdiction to legalize consensual homosexual acts in 1975; however, it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defense. In 2015, the South Australian state government was awaiting the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011, Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principal defense was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defense was that Lindsay's action in stabbing Negre was because he had lost self-control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the directions to the jury on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person would not have lost self-control and acted in the way Lindsay did. The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction, and an application for special leave to appeal to the High Court was dismissed. In April 2017, the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and/or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced. Finally, in 2020, South Australia abolished the defense of provocation altogether.


New Zealand

In 2003, a gay interior designer and former television host,
David McNee Sir David Blackstock McNee (23 March 1925 – 26 April 2019) was a Scottish police officer who was Chief Constable of the City of Glasgow Police (later Strathclyde Police) from 1971 to 1977, and then Commissioner of the Metropolitan Police f ...
, was killed 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. The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter. In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a
banjo The banjo is a stringed instrument with a thin membrane stretched over a frame or cavity to form a resonator. The membrane is typically circular, and in modern forms is usually made of plastic, where early membranes were made of animal skin. ...
and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense. On November 26, 2009, the
New Zealand Parliament The New Zealand Parliament () is the unicameral legislature of New Zealand, consisting of the Monarchy of New Zealand, Sovereign and the New Zealand House of Representatives. The King is usually represented by his Governor-General of New Zeal ...
voted to abolish Section 169 of the
Crimes Act 1961 The Crimes Act 1961 is an act of New Zealand Parliament that forms a leading part of the criminal law in New Zealand. It repeals the Crimes Act 1908, itself a successor of the Criminal Code Act 1893. Most crimes in New Zealand are created by t ...
, removing the provocation defense from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.


Philippines

Lance Cpl. Joseph Scott Pemberton, a U.S. Marine from
Massachusetts Massachusetts ( ; ), officially the Commonwealth of Massachusetts, is a U.S. state, state in the New England region of the Northeastern United States. It borders the Atlantic Ocean and the Gulf of Maine to its east, Connecticut and Rhode ...
, was convicted of homicide (but not of murder) in the
killing of Jennifer Laude On October 11, 2014, Jennifer Laude (), a Filipinos, Filipina trans woman, was killed by Joseph Scott Pemberton, a Lance Corporal in the United States Marine Corps in Olongapo, Philippines. Pemberton admitted assaulting Laude and deployed a tran ...
in a motel room in
Olongapo Olongapo (), officially the City of Olongapo (; ; ; Kapampangan: ''Lakanbalen/Ciudad ning Olongapo''), is a highly urbanized city in the Central Luzon region of the Philippines. According to the 2020 census, it has a population of 260,317 peo ...
in the Philippines in 2014. Police said that Pemberton became enraged after discovering that Laude was transgender. After Pemberton served six years of a ten-year sentence, President
Rodrigo Duterte Rodrigo Roa Duterte (, ; born March 28, 1945) is a Filipino lawyer and politician who served as the 16th president of the Philippines from 2016 to 2022. He is the first Philippine president from Mindanao, and is the oldest person to assum ...
gave him an absolute pardon. Sen.
Imee Marcos Maria Imelda Josefa Remedios "Imee" Romualdez Marcos-Manotoc (; born November 12, 1955) is a Filipino politician and film producer serving as a Senate of the Philippines, senator since 2019. She previously served as governor of Ilocos Norte ...
said the pardon would help the Philippines maintain "very deep and very cordial" relations with the US.


United Kingdom

Guidance given to counsel by the
Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal adv ...
of
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence" or the "guardsman's defence". The latter term was used in a 1980 episode of ''
Rumpole of the Bailey ''Rumpole of the Bailey'' is a British television series created and written by the British writer and barrister John Mortimer. It starred Leo McKern as Horace Rumpole, a middle-aged London barrister who defended a broad variety of clients, ...
''. In December 2024, the CPS issued updated guidance regarding "deception as to sex" in sexual assault cases. The guidance suggests that deception or non-disclosure about one's birth sex could impact consent, and such cases may result in criminal charges.


United States


Federal laws

In 2018, Senator
Ed Markey Edward John Markey (born July 11, 1946) is an American politician serving as the Seniority in the United States Senate, junior United States Senate, United States senator from the state of Massachusetts, a seat he has held since 2013. A member of ...
(D-MA) and Representative Joe Kennedy III (D-MA) introduced 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. In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019 (S.1721 and H.R.3133). The bills would prohibit a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance of an individual or a perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense. Similarly to S.3188, after being sent to committee, the bill died at the end of 2020, and was re-introduced (as S.1137) in April 2021. It was reintroduced in January 2023.


State laws

In 2006, the
California State Legislature The California State Legislature is the bicameral state legislature of the U.S. state of California, consisting of the California State Assembly (lower house with 80 members) and the California State Senate (upper house with 40 members). ...
amended the
Penal Code A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain Crime, offences that are recognised in the jurisdiction, penalties that ...
to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes. The
American Bar Association The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students in the United States; national in scope, it is not specific to any single jurisdiction. Founded in 1878, the ABA's stated acti ...
(ABA) unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses. Following the ABA's resolution in 2013, the LGBT Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country. On September 27, 2014, Governor
Jerry Brown Edmund Gerald Brown Jr. (born April 7, 1938) is an American lawyer, author, and politician who served as the 34th and 39th governor of California from 1975 to 1983 and 2011 to 2019. A member of the Democratic Party (United States), Democratic P ...
signed Assembly Bill No. 2501, making
California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
the first state in the US to ban the gay and trans panic defense. AB 2501 states that discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation does not, by itself, constitute sufficient provocation to justify a lesser charge of voluntary manslaughter. In August 2017,
Bruce Rauner Bruce Vincent Rauner (; born February 18, 1956) is an American businessman, venture capitalist, and politician who served as the 42nd governor of Illinois from 2015 to 2019. A member of the Republican Party, he had a decades-long career in inves ...
, Governor of
Illinois Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. It borders on Lake Michigan to its northeast, the Mississippi River to its west, and the Wabash River, Wabash and Ohio River, Ohio rivers to its ...
, signed SB1761, banning the gay and trans panic defenses in that state. In June 2018, H7066aa and S3014, bills to prohibit the gay and trans panic defense passed the Rhode Island Assembly with overwhelming margins: The House voted 68–2 and the Senate
voice vote In parliamentary procedure, a voice vote (from the Latin ''viva voce'', meaning "by live voice") or acclamation is a voting method in deliberative assemblies (such as legislatures) in which a group vote is taken on a topic or motion by respondin ...
d 27–0. The
Governor of Rhode Island The governor of Rhode Island is the head of government of the U.S. state of Rhode Island and serves as commander-in-chief of the state's Army National Guard and Air National Guard. The current governor is Dan McKee, a member of the Democrati ...
signed the bill into law a month later in July 2018. The law went into effect immediately. In 2019, the
New York State Legislature The New York State Legislature consists of the Bicameralism, two houses that act as the State legislature (United States), state legislature of the U.S. state of New York (state), New York: the New York State Senate and the New York State Assem ...
once again considered banning the gay panic defense. For the 2019–2020 session, the bills considered were S3293 and A2707; prior versions of the bill have died in committee (S7048, 2013–14 session; A5467/S499, 2015–16 session; A5001/S50, 2017–18 session). On June 30, 2019, the day of the
NYC Pride March The NYC Pride March is an annual event celebrating the LGBT culture in New York City, LGBTQ community in New York City#Sexual orientation and gender identity, New York City. The largest pride parade and the List of largest LGBT events, larges ...
, Governor
Andrew Cuomo Andrew Mark Cuomo ( , ; born December 6, 1957) is an American politician and lawyer who served as the 56th governor of New York from 2011 until his resignation in 2021. A member of the Democratic Party and son of former governor Mario Cuomo, ...
signed the ban into law, effective immediately. In April 2019, both houses of the
Hawaii State Legislature The Hawaii State Legislature ( Hawaiian: Ka ‘Aha‘ōlelo kau kānāwai o ka Moku‘āina o Hawai‘i) is the bicameral state legislature of the U.S. state of Hawaii, consisting of the Hawaii State Senate (upper house with 25 senators) and t ...
passed bills to prohibit the gay and trans panic defense (HB711 and SB2). A
conference committee A committee or commission is a body of one or more persons subordinate to a deliberative assembly or other form of organization. A committee may not itself be considered to be a form of assembly or a decision-making body. Usually, an assembly o ...
was set up to reconcile the two versions of the bill; the reconciled bill passed both houses on April 26, 2019, and was signed into law two months later, on June 26, 2019, by the
Governor A governor is an politician, administrative leader and head of a polity or Region#Political regions, political region, in some cases, such as governor-general, governors-general, as the head of a state's official representative. Depending on the ...
David Ige David Yutaka Ige (; 伊芸 豊, ''Ige Yutaka'', born January 15, 1957) is an American politician and engineer who served as the eighth governor of Hawaii from 2014 to 2022. A Democrat, he served in the Hawaii State Senate from 1994 to 2014 and ...
. It went into effect immediately. In May 2019, the
Nevada Legislature The Nevada Legislature is the bicameral state legislature of the U.S. state of Nevada, consisting of the Nevada Assembly (lower house with 42 members) and the Nevada Senate (upper house with 21 members). With a total of 63 seats, the Legisla ...
passed SB97 to prohibit the gay and trans panic defense used within Nevada state courts and tribunals. On May 14, 2019,
Governor A governor is an politician, administrative leader and head of a polity or Region#Political regions, political region, in some cases, such as governor-general, governors-general, as the head of a state's official representative. Depending on the ...
Steve Sisolak Stephen F. Sisolak ( ; born December 26, 1953) is an American businessman and politician who served as the 30th governor of Nevada from 2019 to 2023. A member of the Democratic Party, he served on the Clark County Commission from 2009 to 201 ...
signed SB97 into law. The law went into effect on October 1, 2019. In June 2019, the
Connecticut General Assembly The Connecticut General Assembly (CGA) is the state legislature of the U.S. state of Connecticut. It is a bicameral body composed of the 151-member House of Representatives and the 36-member Senate. It meets in the state capital, Hartford. The ...
passed SB-0058 unanimously to prohibit the trans and gay panic defense. The bill was signed into law by
Governor A governor is an politician, administrative leader and head of a polity or Region#Political regions, political region, in some cases, such as governor-general, governors-general, as the head of a state's official representative. Depending on the ...
Ned Lamont Edward Miner Lamont Jr. ( ; born January 3, 1954) is an American businessman and politician serving since 2019 as the 89th governor of Connecticut. A member of the Democratic Party (United States), Democratic Party, he served as a Greenwich, Con ...
. The law went into effect on October 1, 2019, as per the rules governed under the
Constitution of Connecticut The Constitution of the State of Connecticut is the basic governing document of the U.S. state of Connecticut. It was approved by referendum on December 14, 1965, and proclaimed by the governor as adopted on December 30. It comprises 14 artic ...
. Also in June 2019, the
Maine Legislature The Maine State Legislature is the State legislature (United States), state legislature of the U.S. state of Maine. It is a Bicameralism, bicameral body composed of the lower house Maine House of Representatives and the upper house Maine Senate. ...
passed a bill (House vote 132–1 and Senate vote 35–0), which was signed by
Governor A governor is an politician, administrative leader and head of a polity or Region#Political regions, political region, in some cases, such as governor-general, governors-general, as the head of a state's official representative. Depending on the ...
Janet Mills Janet Trafton Mills (born December 30, 1947) is an American politician and lawyer serving since 2019 as the 75th governor of Maine. She previously served as Maine Attorney General. A member of the Democratic Party, Mills was first elected a ...
on June 21, 2019, to ban the "gay and trans panic defense" effective immediately. New Jersey passed a bill without a single vote in opposition to ban the gay and trans panic defense; it was signed into law in January 2020. In February 2020, the
Washington State Legislature The Washington State Legislature is the state legislature of the State of Washington. It is a bicameral body, composed of the lower Washington House of Representatives, composed of 98 representatives, and the upper Washington State Senate, w ...
passed a bill (House vote 90–5 with 3 excused and Senate vote 46–3) to abolish the gay panic defense. The bill was signed into law in March 2020, by the Governor of Washington State
Jay Inslee Jay Robert Inslee ( ; born February 9, 1951) is an American politician and lawyer who served from 2013 to 2025 as the 23rd governor of Washington. A member of the Democratic Party, he served from 1993 to 1995 and again from 1999 to 2012 as a ...
. Washington state became the tenth US state to ban the gay panic defense when the law went into effect in June 2020. In July 2020, Colorado became the 11th US state to abolish the gay panic defense. The final vote was 63–1–1 in the House and 35–0 in the Senate. In December 2020, the
Council of the District of Columbia The Council of the District of Columbia (or simply D.C. Council) is the legislative branch of the government of the District of Columbia. As permitted in the United States Constitution, the district is not part of any U.S. state and is overseen ...
unanimously voted on a bill to ban the use of the "gay and trans panic defense". Mayor Muriel Bowser said she would sign the measure. The bill will then go to Capitol Hill for a 30 legislative day review by Congress, required by the
District of Columbia Home Rule Act The District of Columbia Home Rule Act is a United States federal law passed on December 24, 1973, which devolved certain congressional powers of the District of Columbia to local government, furthering District of Columbia home rule. In par ...
. As of January 2021, similar bills have been introduced in several other states. In 2023, New Hampshire enacted HB 315, sponsored by Rep. Shaun Filiault. The state officially became the first Republican-controlled state to abolish the gay and trans panic defense, and went into effect on midnight January 1, 2024. Effective from August 1, 2024, Minnesota implemented a law explicitly banning the gay and trans panic defense within an omnibus justice bill passed and signed into law in May 2024. The Michigan legislature passed a ban on the use of the gay and trans panic defense on June 27, 2024. The bill was signed into law by Governor
Gretchen Whitmer Gretchen Esther Whitmer (; born August 23, 1971) is an American lawyer and politician serving as the 49th governor of Michigan since 2019. A member of the Democratic Party (United States), Democratic Party, she served in the Michigan House of R ...
on July 23, 2024.


Use of the gay panic defense

The gay panic defense is invoked as an affirmative defense, but only to strengthen a more "traditional criminal law defense such as insanity, diminished capacity, provocation, or self-defense" and is not meant to provide justification of the crime on its own. While using the gay panic defense to explain insanity has typically not been successful in winning a complete acquittal, diminished capacity, provocation, and self-defense have all been used successfully to reduce charges and sentences. Historically, in US courts, use of the gay panic defense has not typically resulted in the acquittal of the defendant; instead, the defendant was usually found guilty, but on lesser charges, or judges and juries may have cited homosexual solicitation as a mitigating factor, resulting in reduced culpability and sentences. In 1995, the
tabloid talk show A tabloid talk show is a subgenre of the talk show genre that emphasizes controversial and sensationalistic topical subject matter. The subgenre originated in the United States and achieved peak viewership from the mid-1980s through the end of th ...
''
The Jenny Jones Show ''The Jenny Jones Show'' is an American first-run syndicated talk show that was hosted by Jenny Jones. The show ran for twelve seasons from September 16, 1991, to May 21, 2003, in which it broadcast over 2,000 episodes. Taped at the NBC Towe ...
'' filmed an episode titled " Revealing Same Sex Secret Crush". Scott Amedure, a 32-year-old gay man, publicly revealed on the program that he was a
secret admirer A secret admirer is an individual who feels adoration, fondness or love for another person without disclosing their identity to that person, and who might send gifts or love letters to their Puppy love, crush. Grade school The goal of a secret a ...
of Jonathan Schmitz, a 24-year old straight man. Three days after the episode was filmed, Schmitz confronted and killed Amedure. Schmitz was tried for the first-degree murder of Scott Amedure; however, he was convicted on the lesser offense of second-degree murder after asserting the gay panic defense.


Uses of the trans panic defense

* In the 1997 murder of Chanelle Pickett, William C. Palmer claimed that he attacked Pickett after discovering she "was actually a man". However, when the victim's sister and other witnesses revealed that Palmer was aware of Pickett's trans status, Palmer abandoned this defense. * A trans panic defense was used in 2004–2005 in
California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgender teenager with whom they had engaged in sex, had a penis. Following their initial suspicions about her birth-assigned sex, Araujo was "subjected to forced genital exposure in the bathroom, after which it was announced that she was 'really a man. The defendants claimed that Araujo's failure to disclose her birth-assigned sex and anatomy was tantamount to deception, and that the subsequent revelation of her birth-assigned sex "had provoked the violent response to what Thorman represented as a sexual violation 'so deep it's almost primal. The first trial resulted in a jury deadlock; in the second, defendants Mike Magidson and Jose Merél were convicted of second-degree murder, while the jury again deadlocked in the case of Jason Cazares. Cazares later entered a plea of
no contest ''Nolo contendere'' () is a type of legal plea used in some jurisdictions in the United States. It is also referred to as a plea of no contest or no defense. It is a plea where the defendant neither admits nor disputes a charge, serving as an ...
to charges of
voluntary manslaughter Voluntary manslaughter is the killing of a human in which the offender acted in the heat of passion, a state that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control thei ...
. The jury did not return the requested
hate crime Hate crime (also known as bias crime) in criminal law involves a standard offence (such as an assault, murder) with an added element of bias against a victim (individual or group of individuals) because of their physical appearance or perceived ...
additions to the convictions for the defendants. * Angie Zapata was beaten to death by Allen Andrade in July 2008. After Andrade learned that Zapata had a penis, she smiled at him and said "I'm all woman"; his defense attorney stated the smile "was a highly provoking act, and it would cause someone to have an aggressive reaction" when arguing to have the charge against him dropped to second-degree murder. Judge Marcelo Kopcow rejected that argument, and Andrade was sentenced to a mandatory sentence of life in prison without the possibility of parole after he was convicted by a jury of first-degree murder in 2009 after two hours of deliberation. The conviction included a hate crime endorsement, believed to be the first instance of a hate crime application when the victim was transgender. * Islan Nettles was beaten to death in Harlem just after midnight on August 17, 2013. The killer, James Dixon, was not indicted until March 2015, despite turning himself in three days after the attack and confessing that he had flown into "a blind fury" when he realized that Nettles was a transgender woman. Dixon pleaded not guilty to first-degree manslaughter at his indictment. Dixon was not charged with murder, which would have required proof of intent, nor was he charged with a hate crime. During his confession, Dixon said that his friends had mocked him for flirting with Nettles, not realizing that she was transgender. Furthermore, in an incident a few days prior to the beating, his friends had teased him after he flirted with two transgender women while he was doing pull-ups on a scaffolding at 138th Street and Eighth Avenue. Dixon pleaded guilty and received a sentence of 12 years' imprisonment, a sentence that Nettles' mother felt was too lenient.


See also

* *
Homohysteria Homohysteria is the fear of being thought homosexual because of behavior that is typically considered gender atypical. Homohysteria can exist in cultures where it is understood that people are and can be homosexual, even if closeted, and that homo ...
*
Transgender discrimination Sexism is prejudice or discrimination based on one's sex or gender. Sexism can affect anyone, but primarily affects women and girls. It has been linked to gender roles and stereotypes, and may include the belief that one sex or gender is int ...
*
Transgender Day of Remembrance The Transgender Day of Remembrance (TDoR), also known as the International Transgender Day of Remembrance, has been observed annually from its inception on November 20 to memorialize those who have been murdered as a result of transphobia. The ...
, a day to memorialize those who have been killed by transphobia


References


Further reading

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External links


Text of the "Gay Panic" Defense ruling in the Matthew Shepard Murder Trial
at
Court TV Court TV is an American digital broadcast network and former pay-television channel. It was originally launched in 1991 with a focus on crime-themed programs such as true crime documentary series, legal analysis talk shows, and live news cover ...

"They asked for it"
article by Michael Lindenberger in ''The Advocate''
Guidance on Prosecuting Cases of Homophobic Crime
by the
Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal adv ...

LGBTQ+ "Panic" Defense
at the
National LGBT Bar Association The National LGBTQ+ Bar Association, formerly the National Lesbian and Gay Law Association and the National LGBT Bar Association, is a national association of lawyers, judges and other legal professionals, law students, activists, and affiliated ...
{{LGBTQ Criminal defenses Honor killing LGBTQ and society LGBTQ-related legislation Social phenomena Violence against LGBTQ people Violence against gay men Homophobia