Gay and Trans Panic Defense
By Jordan Blair Woods, Brad Sears and Christy Mallory
“Gay panic” and “transgender panic” defenses have been asserted by defendants in criminal trials throughout the U.S. since the 1960s. In these cases, defendants have argued that their violent behavior was a rational response to discovering that the victim was LGBT. The defenses are rooted in irrational fears based on homophobia and transphobia, and send the message that violence against LGBT people is understandable and acceptable. When successful, these defenses have resulted in murder charges being reduced to manslaughter or another lesser offense.
To date, only one state, California, has banned defendants from asserting gay or transgender panic defense by statute. In this brief, Williams Institute scholars present model language, based on the language adopted in California, that other states may use to eliminate use of the defenses through legislation. The model legislation offers language to prohibit defendants from using gay and trans panic defenses under each of the major defenses theories of provocation, insanity/diminished capacity, and self-defense. In addition, the brief provides an overview of the ways in which the defenses have been asserted in trials throughout the last several decades, and evaluates potential constitutional challenges to state legislation eliminating use of the defenses.