Lesbian, gay, bisexual, and transgender (LGBT) people have historically faced and continue to suffer disproportionately high rates of violence.In 2014 alone, over 1,200 anti-LGBT hate crimes were reported to U.S. law enforcement agencies. Homicides involving LGBT victims are particularly high. Available data underestimate the true extent of violence against LGBT people, given that many anti-LGBT hate crimes go unreported every year.
In recent decades, there have been some advances in law and policy to address anti-LGBT violence, including hate crime legislation at the federal, state, and local levels.In spite of these developments, the “gay and trans panic” defenses remain valid defenses in many states today. The gay and trans panic defenses allow perpetrators of LGBT murders to receive a lesser sentence, and in some cases, even avoid being convicted and punished, by placing the blame for homicide on a victim’s actual or perceived sexual orientation or gender identity.
The gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender non-conformity are mental illnesses. Although these ideas have been discredited, their widespread historical acceptance is illustrated by the fact that homosexuality was included in the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders until 1973.In line with this view, criminal defense attorneys began invoking the gay and trans panic defenses in the 1960s, arguing that an LGBT victim’s unwanted sexual advance caused perpetrators to enter a state of “homosexual panic,” and kill the LGBT victim.
Since the 1960s, the gay and trans panic defenses have appeared in court opinions in approximately one-half of the states.No state recognizes gay and trans panic defenses as free-standing defenses under their respective penal codes. Rather, defendants have used concepts of gay and trans panic in three different ways in order to reduce a murder charge to manslaughter or to justifiable homicide.
First, defendants have relied on gay and trans panic defenses to support a defense theory of provocation. Specifically, defendants argue that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity was a sufficiently provocative act that drove them to kill in the heat of passion. Second, defendants have used gay and trans panic defenses to support a defense theory of diminished capacity (and in fewer cases, to support a defense theory of insanity). Under the more common diminished capacity approach, defendants argue that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity caused them to have a temporary mental breakdown, driving them to kill — in other words, a “homosexual panic.” Third and finally, defendants have used gay and trans panic defenses to support a theory of self-defense. Here, defendants argue that they had a reasonable belief that they were in immediate danger of serious bodily harm based on the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity.
The gay and trans panic defenses are rooted in irrational fears based on homophobia and transphobia, and send the wrong message that violence against LGBT people is acceptable. In 2013, the American Bar Association unanimously approved a resolution calling for state legislatures to eliminate the gay and trans panic defenses through legislation.At that point, no state legislature had passed legislation to ban the gay and trans panic defenses, although some courts had rejected the defenses under state law. In 2014, California passed legislation amending the statutory definition of voluntary manslaughter, to become the first state to eliminate the gay and trans panic defenses through legislation. Since then, legislation banning the gay and trans panic defenses has been introduced in Illinois, New Jersey, and Pennsylvania.
This brief presents legal and policy analysis, and model legislation, for eliminating the gay and trans panic defenses. Part I provides an overview of what we know about the gay and trans panic defenses from court opinions across the United States. Part II evaluates potential constitutional challenges to state legislation eliminating the gay and trans panic defenses. Part III presents model legislation to eliminate the gay and trans panic defenses. The model legislation offers language to prohibit defendants from using the gay and trans panic defenses under the major defense theories of provocation, insanity/diminished capacity, and self-defense.