The gay panic defense is often used in conjunction with more common defenses such as provocation or self-defense — when legal at all. The gay panic defense, sometimes called the LGBTQ+ panic defense where transgender or other identity-based victims are concerned, is under increased scrutiny because it so often is based on the preconceived notion that something is “wrong” with the LGBTQ community.
At least four states have made the gay panic defense illegal, and New Jersey legislators seek to make their state the ninth.
But the gay panic defense might soon be struck down at the federal level thanks to a “Sexual Orientation and Gender Identity Panic Defense Prohibition Act of 2019” put forth by the Washington, D.C. Council.
Council Chairman Phil Mendelson introduced the legislation earlier this year. If passed, defendants would no longer be allowed to base legal strategies on acting in the heat of the moment after discovering someone is gay or transgender.
Representative Joe Kennedy (Democrat-MA) said, “Claiming a victim’s sexual orientation or gender identity justify murder or assault expressly tells entire segments of our society that their lives are not worthy of protection. As long as gay and trans panic defenses are allowed in our state and federal courts, the LGBTQ community will be deprived of the justice all Americans deserve. With four states already implementing bans, we have the federal momentum to outlaw this bigoted legal practice across the country.”
Senator Ed Markey (Democrat-MA) said, “Our courtrooms are supposed to be chambers of justice, not hate. So-called gay and trans panic legal defenses perpetuate bigotry and violence toward the LGBTQ community and should be banned. They corrode the legitimacy of federal prosecutions, and blame victims for the violence committed against them. All Americans deserve to be treated with dignity and humanity in our justice system…Relegate hateful practice of gay and trans panic defense to the history books.”
Not everyone agrees with the new legislation — even when they don’t agree with the gay panic defense.
George Washington University Law School Professor Cynthia Lee said, “I…argue that banning gay panic arguments from the criminal courtroom is a bad idea. When gay panic arguments are forced to take a covert turn — when they are not explicit or out in the open — they may actually be more effective than they would be if out in the open. Social science research on implicit bias suggests that making race salient can diminish the otherwise automatic effect of racial stereotypes on perception and beliefs.”
In other words, keep an already mostly ineffective legal defense legal, and those accused of committing the crimes are still more likely to end up in jail than if you made such defense illegal outright.