Report

Model Legislation for Eliminating the Gay and Trans Panic Defenses

September 2016

This report presents an overview of how gay and trans panic defenses have been used in court across the U.S. and provides model legislation that states’ may adopt to prevent the use of the defenses under the theories of provocation, diminished capacity, and self-defense.

AUTHORS
Highlights
The gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender non-conformity are mental illnesses.
Since the 1960s, discussions of the gay and trans panic defenses have appeared in court opinions in approximately one-half of the states.
California became the first state to eliminate use of the gay and trans panic defenses through legislation in 2014.
Report

Lesbian, gay, bisexual, and transgender (LGBT) people have historically faced and continue to suffer disproportionately high rates of violence.1 In 2014 alone, over 1,200 anti-LGBT hate crimes were reported to U.S. law enforcement agencies.2 Homicides involving LGBT victims are particularly high.3 Available data underestimate the true extent of violence against LGBT people, given that many anti-LGBT hate crimes go unreported every year.4

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.5 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 1973.6 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.7

Since the 1960s, the gay and trans panic defenses have appeared in court opinions in approximately one-half of the states.8 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.9

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.10 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.11 In 2014, California passed legislation amending the statutory definition of voluntary manslaughter,12 to become the first state to eliminate the gay and trans panic defenses through legislation.13 Since then, legislation banning the gay and trans panic defenses has been introduced in Illinois, New Jersey, and Pennsylvania.14

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.

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Model Legislation for Eliminating the Gay and Trans Panic Defenses

Jaime M. Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 2 (2011), http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf (reporting that 61% of the 6,450 respondents in the National Transgender Discrimination Survey were the victim of physical assault); Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression and Violence Behavior 170 (2009) (providing a comprehensive review of data on violence against transgender people); Gregory M. Herek, Hate Crimes and Stigma-Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National Probability Sample, 24 J. Interpersonal Violence 54, 54 (2009) (reporting that approximately 20% of LGB adults reported having experienced a person or property crime based on their sexual orientation).

These statistics are based on the most recent data from the Federal Bureau of Investigation’s Uniform Crime Reports. See 2014 Hate Crime Statistics, available at https://www.fbi.gov/about-us/cjis/ucr/hate-crime/2014/topic-pages/incidentsandoffenses_final.

National Coalition of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence in 2014 8 (2015), available at http://www.avp.org/storage/documents/Reports/2014_HV_Report-Final.pdf.

James J. Nolan & Yoshio Akiyama, An Analysis of Factors That Affect Law Enforcement Participation in Hate Crime Reporting, 15 J. Contemp. Crim. Just. 111, 114 (1999) (concluding that gay, lesbian, bisexual, and transgender victims frequently do not report hate crimes because they fear police insensitivity and secondary victimization by police officers).

See The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249 (2014); Movement Advancement Project, Hate Crime Laws, http://www.lgbtmap.org/equality-maps/hate_crime_laws (reporting that as of May 13, 2016, 17 states and the District of Columbia have hate crime laws that cover sexual orientation and gender identity, and 13 states have laws that only cover sexual orientation).

In 1980, “gender identity disorders” were included in the DSM. Gordene Olga MacKinzie, Transgender Nation 69 (1994). Those labels remained in the DSM until 2013, when the APA changed “gender identity disorders” to appear as “gender dysphoria.” American Psychological Association, REPORT OF THE APA TASK FORCE ON GENDER IDENTITY & GENDER VARIANCE (2008), http://www.apa.org/pubs/info/reports/gender-identity.aspx. This change reflected the APA’s intent to avoid stigmatizing transgender people who sought gender reaffirming medical care and to “better characterize the experiences of affected children, adolescents, and adults.” American Psychiatric Association, GENDER DYSPHORIA (2013), http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf.

Cynthia Lee, The Gay Panic Defense, 42 U.C. DAVIS L. REV. 471, 477 (2008).

States with reported court decisions discussing the gay and trans panic defenses are Arizona (2010), California (1967, 2002), Florida (2012), Georgia (2001), Kansas (2006), Illinois (1972, 1977, 1993, 2000, 2004), Indiana (2001), Iowa (2015), Louisiana (1990), Massachusetts (1978, 2005), Michigan (2000), Missouri (1975, 1990, 2000), New Jersey (2004), New York (2012), North Carolina (1978), Nebraska (1994), New Jersey (1988), Ohio (1988), Pennsylvania (2010), Tennessee (1998, 2009), Texas (2007), Wisconsin (2001), and Wyoming (1979, 1999).

American Bar Association, Gay and Trans Panic Defenses Resolution (2013), available at http://lgbtbar.org/wp-content/uploads/2014/02/Gay-and-Trans-Panic-Defenses-Resolution.pdf.

Id.

Those states are Florida, Illinois, and Kansas. See infra Part I.

Assembly Bill 2501 amended the statutory definition of voluntary manslaughter under the California Penal Code to include the following language:

(f)(1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.

(2) For purposes of this subdivision, “gender” includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.

Cal. Penal Code § 192(f) (2015).

Parker Marie Molloy, California Becomes First State to Ban Gay, Trans “Panic” Defenses, The Advocate, Sept. 29, 2014, available at http://www.advocate.com/crime/2014/09/29/california-becomes-first-state-ban-gay-trans-panic-defenses.

Illinois: Bill Status of SB 3046, 99th General Assembly, http://www.ilga.gov/legislation/BillStatus.asp?DocNum=3046&GAID=13&DocTypeID=SB&LegId=96385&SessionID=88&GA=99; New Jersey: Bills 2014-2015, A4083, http://www.njleg.state.nj.us/2014/Bills/A4500/4083_I1.PDF, Pennsylvania: HB 1509, http://www.legis.state.pa.us/cfdocs/billInfo/billInfo.cfm?sYear=2015&sInd=0&body=H&type=B&bn=1509.