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, 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 particular to LGBTQ+ identities – specifically sexuality and gender – to justify horrific violence. The defense is deeply rooted in homophobia and transphobia and directly harms a community that already faces staggering levels of violence, especially for people with intersectional identities. In the United States, 7.1% of adults identify as LGBTQ+. That number is steadily growing – in 2021 polling showed that 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.
1995Talk show host Jenny Jones was hosting a show that discussed the topic of secret admirers. Jonathan Schmitz was invited to participate and was surprised and embarrassed to see his male friend, Scott Amedure, confess to having a crush on him. Three days after the show, Schmitz drove to Amedure’s home and shot Amadure twice in the heart, killing him. At trial, Schmitz argued that he suffered from diminished capacity due to the “gay panic disorder” he experienced when Amedure revealed his attraction on the Jenny Jones Show, which rendered him unable to plan the killing, despite overwhelming evidence to the contrary. The jury reduced the charge from premeditated murder to second-degree murder.
2001Ahmed Dabarran was an Assistant District Attorney in Fulton County, Georgia. He was struck over the head over a dozen times by Roderiqus Reshad Reed and died from his injuries. At trial, Reed’s attorney claimed that Reed killed Dabarran to protect himself from unwanted sexual advances. However, a medical examiner testified that Dabarran was asleep at the time of the murder. The jury acquitted Reed of the murder despite Reed’s full confession.
2002Gwen Araujo, a 17-year-old transgender woman, met Michael Magidson and José Merel online and the three engaged in consensual sex. Several months later, Magidson and Merel discovered that Araujo was transgender. They beat her repeatedly, strangled her, tied her up, and hit her with a shovel, killing her. At trial, Magidson’s attorney claimed that Magidson’s violence was caused by the shock of discovering Araujo was transgender. The jury deadlocked. In a second trial, however, the jury rejected Magidson’s claim and found him guilty of second-degree murder.
GUIN “RICHIE” PHILLIPS
2003Guin “Richie” Phillips was strangled to death before being placed in a suitcase and dumped into River Lake. Police arrested Joshua Cottrell for the murder. During the trial, Cottrell’s defense attorney claimed that Phillips made unwanted sexual advances and attempted to force Cottrell to have oral sex, but friends and family testified that Cottrell invited Phillips to his hotel room and posed questions of a sexual nature before attacking Phillips. Cottrell’s aunt testified that the murder was premeditated. The jury forewent charges of murder or reckless homicide and convicted Cottrell of second-degree manslaughter.
2008In July of 2008, 18-year-old Angie Zapata met 31-year-old Allen Andrade and they spent three days together, during which they had at least one sexual encounter. When Andrade discovered that Zapata was transgender, he viciously beat her with a fire extinguisher. Upon his arrest, Andrade said he thought he had “killed it.” Andrade was found guilty of both first-degree murder and a hate crime and was sentenced to life in prison.
2008Terrance Hauser was stabbed 61 times by his neighbor Joseph Biedermann. During his murder trial, Biedermann claimed that he passed out and woke up to Hauser holding a sword against his neck and attempting to sexually assault him. Biedermann claimed to be in such a panic that the only way he could escape was to stab Hauser 61 times, but evidence from the scene showed few signs of struggle. The jury acquitted Biedermann of first-degree murder.
2008Tony Hunter, a gay Maryland resident, was walking to a gay bar in Shaw, a DC neighborhood, when he was attacked by Robert Hannah. Hannah claimed that Hunter allegedly touched his crotch and butt in a sexually suggestive way, leading Hannah to hit Hunter in self-defense. After Hannah punched him in the face, Hunter fell backwards into a fence before falling to the ground and hitting his head on the pavement, resulting in a brain injury that the city’s medical examiner said caused his death.
FRANCISCO GONZALEZ FUENTES
2011Pedro Garcia and Wilfredo Sanchez beat Francisco Gonzalez Fuentes, placed him in the bathtub, and stabbed him to death before dismembering his body and packing it into garbage bags. At trial, Garcia stated that Fuentes had told others that they were in a relationship, and Garcia attacked him because he was terrified that someone would think he was gay. The prosecution argued that Garcia was Fuentes’ live-in boyfriend. Sanchez was sentenced to death and Garcia received 60 years after agreeing to testify against Sanchez.
2013Marco McMillian was the first openly gay man to run for office in Mississippi. In February 2013, Lawrence Reed choked McMillian with a wallet chain, drowned him, doused his body in gasoline and set it on fire. Reed admitted to the murder but insisted he was defending himself against McMillian’s sexually aggressive advances. Prosecutors presented strong physical evidence showing no indication of an attack by McMillian. Reed was sentenced to life in prison.
2013Ever Orozco, 69, was viciously stabbed to death by Steven Torres, 22, under a subway in Queens. Torres claimed that Orozco blew kisses at him and made other sexual advances. Torres was convicted of second-degree murder.
2013Bella Evangelista was a popular trans performer at many of Washington D.C.’s area bars and nightclubs was loved by many. On August 16, 2003, Antoine Jacobs fatally shot Bella three times after discovering her transgender status. The crime was charged as a hate crime; carrying a life sentence if convicted; however in 2005 Jacobs pled guilty to second-degree murder. On December 16 of that year Jacobs was sentenced to sixteen years and eight months followed by five years of supervised probation.
2014US Marine Scott Pemberton was stationed in Olangapo City, Philippines, when he met Jennifer Laude. When he discovered her transgender status, he choked Laude until she lost consciousness and died. A Philippine court found Pemberton guilty of homicide, but the judge claimed the charge could not be elevated to the level of murder.
2015Daniel Spencer was stabbed and murdered by his neighbor Robert Miller in September 2015. Miller claimed that he rejected a sexual advance from Spencer and acted in self defense when Spencer became agitated, but physical evidence disproved his claim that he was ever in danger. Miller’s conviction was mitigated from murder to criminally negligent manslaughter.
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
Legislation that would ban the LGBTQ+ “panic” defense has been introduced in:
- Arizona (pending) – 2024
- Arkansas (failed) – 2023
- Florida (pending) – 2023
- Iowa (failed) – 2023
- Michigan (pending) –2023
- Minnesota (failed) – 2023
- Montana (failed) – 2023
- Pennsylvania (pending) – 2023
- Wisconsin (pending) – 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.