Two members of Congress have introduced national legislation to exclude the use of “gay panic” or “trans panic” defenses for defendants charged with violent crimes.
Defendants may try to use the “gay panic” or “trans panic” defense by arguing that their violent actions were provoked or justified because their knowledge of the victim’s sexual orientation or gender identity created reasonable fear for their safety or wellbeing.
Such defenses have been utilized, some effectively and others not so much, in many high-profile hate crimes or murders of members of the LGBTQ community, including Matthew Shepard, Gwen Araujo, and Angie Zapata.
The Gay and Trans Panic Defense Prohibition Act, introduced by U.S. Sen. Ed Markey (D-Mass.) and U.S. Rep. Joe Kennedy III (D-Mass.), would prohibit defense lawyers from using a victim’s LGBTQ identity as justification for a crime or to argue for lesser sentences on the premise that there were extenuating circumstances that motivated their clients to lash out violently.
“Sexual orientation or gender identity cannot ever excuse violence, and our courtrooms should not be used as chambers of hate,” Markey said in a statement. “Gay and trans panic legal defenses reflect an irrational fear and bigotry toward the LGBTQ community and corrode the legitimacy of federal prosecutions. These defenses must be prohibited to ensure that all Americans are treated with dignity and humanity in our justice system.”
“Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it is a hate crime,” Kennedy added in a statement of his own. “Legal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual, and transgender neighbors should never have existed in the first place.”
The Senate version of the legislation has been co-sponsored by Sens. Tammy Baldwin (D-Wis.), Richard Blumenthal (D-Conn.), Kamala Harris (D-Calif.), Ron Wyden (D-Ore.), and Tim Kaine (D-Va.). The House version is co-sponsored by U.S. Reps. Alan Lowenthal (D-Calif.), Raul Grijalva (D-Ariz.), Brian Higgins (D-N.Y.), David N. Cicilline (D-R.I.), and Del. Eleanor Holmes Norton (D-D.C.). Both bills are expected to gain more co-sponsors in the coming weeks.
Several states have already passed laws to limit or prohibit the use of gay panic and trans panic defenses, with California and Illinois banning the practice altogether. Similar legislation has been introduced in New Jersey, Washington State, Rhode Island, New York, Georgia, Minnesota, Pennsylvania, and the District of Columbia. Such bans have been endorsed by the American Bar Association, the National LGBT Bar Association, the Matthew Shepard Foundation, Equality California, and the American Unity Fund.
“The LGBT Bar has been working to end gay and trans ‘panic’ defenses for over a decade and is hopeful that the Gay and Trans Panic Defense Prohibition Act of 2018 will bring an end to these heinous defenses,” D’Arcy Kemnitz, the executive director of the National LGBT Bar Association, said in a statement.
“Gay and trans ‘panic’ defenses have long stood as a symbol of dangerous and outdated thinking. An individual’s sexual orientation or gender identity/expression should never justify a violent attack or murder. To say otherwise sends a message to the LGBT community that their lives are inherently less valued. The continued allowance of these defenses is a failure of the justice system.”
The American Bar Association also praised the introduction of the legislation, calling the use of such defenses “remnants of a by-gone era” when anti-LGBTQ discrimination was tolerated and even accepted.
“Gay and trans ‘panic’ defenses deprive LGBT Americans of the blessing of liberty because they enshrine in law the idea that murder is a justifiable response to a life lived freely,” the American Unity Fund said in a statement. “This is a dishonor to LGBT people’s right to life and an egregious blot on the American justice system.”