The LGBTQ+ Bar is proud to be leading the effort to ban the LGBTQ+ “panic” defense across the country. In 2013, The American Bar Association (ABA) unanimously approved a resolution—introduced by the LGBTQ+ Bar—calling for an end to this heinous defense strategy. Since then, the District of Columbia and the states of California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado, Virginia, Vermont, Oregon, Maryland, Minnesota, New Mexico, New Hampshire, and Delaware have banned such defenses. Legislation is pending federally as well as in multiple states.

What is the LGBTQ+ “panic” defense?

The LGBTQ+ “panic” defense is a legal strategy wherein defendants charged with violent crimes weaponize their victim’s real or perceived sexual orientation or gender identity/expression to reduce or evade criminal liability. It is not a freestanding defense to criminal liability. Rather, the defense is a legal tactic that bolsters other defenses, such as insanity, provocation, or self-defense. When a defendant uses the LGBTQ+ “panic” defense, they argue that their violent actions are both explained and excused by their victim’s real or perceived sexual orientation or gender identity/expression. The goal of this strategy is to employ homophobia and transphobia to persuade a jury into fully or partially acquitting the defendant. Whether or not this appeal to bigotry is successful in court, every time a defendant invokes the LGBTQ+ “panic” defense, they reinforce the dangerous and discredited belief that LGBTQ+ lives are worth less than others.

Matthew Shepard’s murder trial is one of the most recognized cases featuring the LGTBQ+ “panic” defense. In 1998, two men brutally beat the 21-year-old college student and left him to die on the side of a road in Laramie, Wyoming. At trial, the defendants attempted to use the LGBTQ+ “panic” defense to excuse their actions. While they were thankfully unsuccessful, the employment of the defense further harmed the memory of Matthew Shepard by blaming him for his brutal murder. Today, the defense is still employed in courtrooms across the country.

What is the difference between the “gay/trans panic” defense and the “LGBTQ+ panic” defense?

The LGBTQ+ Bar uses the term “LGBTQ+ panic” rather than “gay and trans panic” because the former term is more inclusive, recognizing that the defense strategy impacts everyone in the LGBTQ+ community. Referring to the tactic as specifically the “gay and trans panic” defense excludes violence against those who do not identify as gay or transgender. The LGBTQ+ community is composed of individuals with richly diverse experiences and identities. Our language must reflect and embrace that diversity.

How is the defense used in court?

Traditionally, the LGBTQ+ “panic” defense is used in three ways to mitigate a case of murder to manslaughter or justified homicide. It also is used in cases of assault and battery to evade a guilty verdict or reduce charges. 

• Defense of insanity or diminished capacity: The defendant alleges their victim’s romantic or sexual proposition, sometimes referred to as a “non-violent sexual advance,” triggered a nervous breakdown because of the victim’s perceived or known LGBTQ+ identity. This defense is based on a discredited psychological term, “gay panic disorder,” which was debunked by the American Psychiatric Association and removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973. Sadly, the legal field has yet to catch up.
  
• Defense of provocation: The defendant alleges their LGBTQ+ victim’s romantic or sexual proposition provided reasonable provocation to attack or murder them. This strategy stigmatizes LGBTQ+ identities by implying that LGBTQ+ people and experiences are inherently harmful, dangerous, and deserving of violence.
• Defense of self-defense: The defendant alleges they believed the victim intended to cause serious bodily harm because of the victim’s sexual orientation or gender identity/expression. The LGBTQ+ “panic” defense is usually employed to bolster a self-defense claim when the victim’s behavior does not meet the threat of serious bodily harm standard or when the defendant used greater force than reasonably necessary to avoid danger. This strategy requires the defendant to argue that their victim’s LGBTQ+ identity made them a greater threat than a heterosexual and/or cisgender person.

Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups?

The LGBTQ+ “panic” defense draws on dangerous historic stigmas unique to LGBTQ+ identities – specifically sexuality and gender – to justify horrific violence. While other groups face violence as well, this specific tactic directly employs homophobia and transphobia. Moreover, due to the staggering levels of violence that LGBTQ+ people face, the connections between violence against LGBTQ+ people and this specific tactic cannot be ignored. In the United States, 7.6% of adults identify as LGBTQ+. That number is steadily growing – in 2021 polling showed that just 5.6% of adults identified as LGBTQ+. While more people are openly expressing their identities, the LGBTQ+ community continues to face alarming and increasing rates of violence. From 2020 to 2021, hate crimes committed against the LGBTQ+ community rose by 70%. Further, the number of transgender people murdered in the United States nearly doubled between 2017 and 2021. These stark statistics demonstrate that the LGBTQ+ community, particularly transgender people of color, need better protections. Eliminating the LGBTQ+ “panic” defense does more than ensure that defendants who attacked or killed LGBTQ+ people answer for their crime. It also sends a clear message inside and outside of the courtroom that LGBTQ+ people deserve equal dignity under the law.

How successful is the LGBTQ+ “panic” defense?

It can be difficult to track the success of the LGBTQ+ “panic” defense for a variety of reasons. Often, we rely on local reporting to track cases involving the defense, making it especially hard to find every instance in which it is employed, let alone successful. From what we have tracked, we know that juries have acquitted dozens of defendants for crimes ranging from assault to murder due to the LGBTQ+ “panic” defense strategy. As recently as April 2018, the LGBTQ+ “panic” defense was used to mitigate a murder charge. Even in instances where courts instruct jurors not to engage in bias, the implicit homophobia and transphobia of the LGBTQ+ “panic” defense can still influence the jury’s decision. For example, in cases where defendants are not acquitted under the LGBTQ+ “panic” defense, the jury may still deadlock because it is unable to shake the inherent homophobia or transphobia of the defense. When it comes to a LGBTQ+ victim’s dignity, a hung jury and a mitigated sentence have the same effect. Both withhold justice from LGBTQ+ victims and send the message that an LGBTQ+ person’s life is not equal to others under the law. It is also important to recognize that this insidious defense does not need to be successful to be dangerous. Every time a defendant presents a narrative blaming LGBTQ+ individuals for the violence they endure, including murder, they bolster harmful stereotypes and justify alarming rates of anti-LGBTQ+ violence in the United States.

Case Examples

Below are some examples of how the LGBTQ+ “panic” defense has been used in real cases across the country. This resource is meant to provide representative case examples of this defense tactic, not an exhaustive list of all cases in which it has been employed. This tactic is significantly challenging to track, partially because many people do not realize it is a distinguishable defense tactic, not something unique to the cases in which it is employed. Moreover, LGBTQ+ “panic” defense arguments are often raised during pretrial proceedings or at trial, meaning there is often no published court record or case to document the tactic. For this reason, researchers depend heavily on local reporting to identify cases employing the LGBTQ+ “panic” defense. While a particular jurisdiction may not be featured in this case bank, that does not mean the tactic has not been employed in that jurisdiction. Finally, please note that all demographic specific information is collected based on local reporting and is subject to change. For any questions regarding this resource, please contact National LGBTQ+ Bar Policy Counsel, Mari Nemec, at mari@lgbtqbar.org.

The National LGBTQ+ Bar would like to thank Professor W. Carsten Andresen for his significant research on this topic, which greatly informed the resource below.

What can be done?

Federal, state, local, and tribal legislatures must pass legislation specifying that neither non-violent sexual advances by actual or perceived LGBTQ+ people nor the discovery of a person’s actual or perceived LGBTQ+ identity is adequate provocation or justification for violent crimes – including both murder and assault. While several states have made tremendous progress through such legislation, the LGBTQ+ “panic” defense is still viable in most states and in federal courts. At the minimum, courts should instruct juries to make decisions without bias or prejudice to ensure that the LGBTQ+ “panic” defense is not seen as a valid excuse for violence. Additionally, local governments should educate courts, prosecutors, defense counsel, and the public about the devastating personal and legal consequences of the LGBTQ+ “panic” defense.

Notably, in 2013, at the urging of the LGBTQ+ Bar, the American Bar Association passed a resolution urging legislative action against the LGBTQ+ “panic” defense. Jury instructions and education are often not enough to ensure that individuals are not swayed by discriminatory appeals – that is why the LGBTQ+ Bar continues to strongly advocate for clear, bold, and expansive legislation that will protect the dignity of LGBTQ+ victims of violent crimes.

The LGBTQ+ “panic” defense is banned in the following jurisdictions:

• California – 2006, 2014
• Illinois – 2017
• Rhode Island – 2018
• Connecticut – 2019
• Hawaii – 2019
• Maine – 2019
• Nevada – 2019
• New York – 2019
• District of Columbia – 2020
• Colorado – 2020
• New Jersey – 2020
• Washington – 2020
• Maryland – 2021
• Oregon – 2021
• Vermont – 2021
• Virginia – 2021
• New Mexico – 2022
• New Hampshire – 2023
• Delaware – 2023
• Minnesota – 2024
• Michigan –2024

Legislation that would ban the LGBTQ+ “panic” defense has been introduced in:

• Arizona (failed) – 2024
• Arkansas (failed) – 2023
• Florida (failed) – 2023
• Iowa (failed) – 2023
• Montana (failed) – 2023
• Pennsylvania (pending) – 2023
• Wisconsin (failed) – 2023
• Georgia (failed) – 2022
• Massachusetts (failed) – 2021
• Nebraska (failed) – 2021
• North Carolina (failed) – 2021
• Texas (failed) – 2020

In July of 2023, The LGBTQ+ Panic Defense Prohibition Act of 2023 was introduced by Senator Markey (D-MA) in the United States Senate and by Congressman Pappas (D-NH) in the United States House of Representatives.