New study shows gay and trans panic defense is still a thing
By Velvet Wahl
The Williams Institute at UCLA School of Law just released a report that examines the use of gay and trans panic defenses in violence against the LGBTQ community over the last six decades.
The report looks at numerous studies that show patterns of violence against LGBTQ people, “including higher rates of violent victimization among transgender people and LGBTQ people of color,” it said.
In many cases of violence against LGTBQ victims that make it to court, the perpetrator will use a gay and trans panic defense. The defense is rooted in the idea that being LGBTQ is a mental illness and relies on the assumption that it is acceptable for a perpetrator to react violently upon discovering someone is LGBTQ, the report said.
“When invoked successfully, the gay and trans panic defenses allow perpetrators of LGBTQ murders to receive lesser sentences, and in some cases, avoid being convicted and sentenced altogether, by placing the blame for homicide on the victim’s actual or perceived sexual orientation or gender identity,” it said.
Homosexuality was included in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders until 1973 and “gender identity disorders” were included until the early 2000s. Recent data published by the FBI in 2019 showed that 16.7% of all hate crime victims were targeted because of their sexual orientation and 2.7% for their gender identity, the report said.
“Other studies have further documented pervasive violent victimization among LGBTQ people,” it said. “For example, reports on hate violence against LGBTQ people and people living with HIV conducted by the National Coalition of Anti-Violence Programs (NCAVP) documented over 3,000 incidents of violence over a three-year period (2015–2017).”
Violence against LGBTQ people often starts early in their lives. They are mistreated by either family members or non-LGBTQ peers at school.
“In one study about the challenges that youth face, LGBT youth ranked non-accepting families as the most important problem in their lives (26%),” the report said. “Followed by school and bullying problems (21%) and fear of being open about being LGBT (18%).”
Transgender people experience high levels of violence, with 47% of transgender people surveyed in 13 Southern states reporting “high-intensity violence from strangers,” according to a 2019 report from the Transgender Law Center.
And members of the LGBTQ community are more likely to experience intimate partner violence, with the NCAVP documenting over 6,000 cases from 2015 to 2017.
“The differences in treatment were most pronounced for major physical abuse, with LGB men being about three times as likely to report these experiences, and LGB women about eight times as likely, as their non-LGB counterparts,” the report said.
Members of the LGBTQ community are less likely to report violence out of fear of discrimination by police and health care providers, according to the report.
“For decades, LGBTQ communities—particularly LGBTQ people of color, youth, and transgender and gender non-conforming people—have been subject to various forms of mistreatment by law enforcement, including profiling, entrapment, discrimination, harassment, and violence,” it said.
Many states do not have laws that adequately protect survivors from hate violence and intimate partner violence. There are 45 states with hate crime laws, but a lot of them don’t include sex, sexual orientation or gender identity protections.
This means that defendants can use the gay or trans panic defense to successfully diminish or veto any convictions of hate crimes against the LGBTQ community. According to lgbtqmap.org, Arizona’s hate crime laws do not cover gender identity and there is no ban on the panic defense.
“In addition, IPV (intimate partner violence) laws in several states fail to adequately protect individuals regardless of whether they have faced violence at the hands of a same-sex or different-sex partner. Although laws that criminalize IPV expressly apply to individuals in both same-sex and different-sex relationships in all states but North Carolina (discussed infra), there is considerable variation in these laws that leaves many survivors without protection.”
Why has the gay and trans panic defense been a successful tool for for mitigating blame? The report lists three reasons, with the first being the reliance on the 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,” it said.
The second reason it's been successful is because defendants have used it to support a defense theory of diminished capacity. They argue that learning someone’s sexual orientation or gender identity caused them to have a temporary mental breakdown, also known as “homosexual panic,” that led them to reacting violently.
Finally, defendants have used gay and trans panic defense to support a theory of self-defense.
“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 report said.
The report proposes model language in hopes that state legislatures will adopt it to prohibit the use of gay and transgender panic defenses.
“One way states can combat the epidemic of violence against LGBTQ people is by passing laws that bar defendants from asserting the gay and trans panic defenses in court.”
Read the full report here.