States are slowly moving to ban the homophobic ‘gay panic’ defence

A step forward in New Mexico could see another state join the ranks of those banning a pernicious legal principle

Flying the flag (EPA)

Lawmakers in New Mexico took a step forward for LGBT+ people recently by advancing a bill to ban the so-called “gay panic” defence – a strange, backward legal idea that’s evaded the march of sexual and gender equality across the US with remarkable resilience.

In a nutshell, the gay panic defence is the idea that many heterosexual people can be triggered into violent, even murderous, reaction by an unwanted sexual advance from someone of the same gender – in another sense, that someone who murders a person based on their sexual orientation is not necessarily responsible for their actions.

This argument is not used as a defence in its own right, but as a complement to other defences such as temporary insanity, provocation, or self-defence. In an era where hard-won federal and state legislation treats property damage, violence and murder meted out to LGBT+ people as hate crimes, that the gay panic defence remains unbanned in most US states seems a remarkable oversight – but in some places, things seem to be changing.

As one New Mexico lawmaker said: “It is appalling that we would continue to allow the alleged perpetrator of violence to defend themselves by claiming they panicked because of the sexual orientation or gender identity of their victim – that we would say the sheer surprise revelation of our sexuality or gender would determine our worthiness to live.”

Though it is infrequently used, the defence is only outlawed in a few states; according to the National LGBT Bar Association, those that have banned it include California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, and Colorado, as well as the District of Columbia.

As the association points out, referring to it as the “gay” panic defence is reductive, since the tactic can be used against people of any sexual orientation or gender identity, not just those who identify as gay. Hate crimes against LBGT+ people remain alarmingly prevalent, and the existence of a defence that could be used to justify identity-based violence does not make this often deadly problem easier to solve.

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The defence infamously got a national airing after the murder of Matthew Shepard, a young gay man in Wyoming, who was found tied to a fence barely alive and horrifically beaten in 1998. After he died in hospital several days later, two men were arrested for robbing and killing him.

During court proceedings, one of the men’s legal teams attempted to advance the “gay panic” theory on his client’s behalf, claiming that Shepard had made an advance on his client and triggered a violent response – one that drew on traumatic youthful homosexual experiences as well as the influence of drugs and alcohol.

The judge rejected the defence, declaring that “even if relevant, the evidence will mislead and confuse the jury”; the prosecution, meanwhile, argued that the defence implicitly offered an excuse that could be cited to explain any murder away.

While the Shepard case did not see the defence vindicated, it did leave a lasting impact on the way violence against LGBT+ people is policed. A decade later, Shepard’s name was given to a law that extended the federal definition of hate crimes to cover gender, disability, gender identity, or sexual orientation.

Since then, legislation to eliminate the panic defence has been introduced not just at state level, but federally too. During the last Congress, Democratic members of the House and Senate introduced the Gay and Trans Panic Defense Prohibition Act of 2019, which would enter into law that “No nonviolent sexual advance or perception or belief, even if inaccurate, of the gender, gender identity or expression, or sexual orientation of an individual may be used to excuse or justify the conduct of an individual or mitigate the severity of an offence”.

The bill never moved past the committee stage, but if reintroduced, it may stand a better chance with a Congress and White House both controlled by the Democrats.

The gay panic defence is not the same as the notorious “twinkie defence” that surfaced in the trial of Dan White, who murdered gay San Francisco city supervisor Harvey Milk and Mayor George Moscone in 1978.

White’s team argued that he was suffering from depression at the time of the murders, and that his sudden turn to junk food as opposed to his usual healthy diet indicated the seriousness of his mental deterioration in advance of the murders. Contrary to popular belief, the defence team did not argue that the twinkies their client ate had themselves made him murderously violent. In a controversial verdict, Mr White was ultimately found guilty of manslaughter.