The Williams Institute, an LGBT think tank at the UCLA School of Law, is calling on states to pass legislation to ban the so-called gay and transgender “panic” defense in criminal trials.
In a 22-page legal brief it released on Sept. 8, the Williams Institute says this particular defense has been used in cases involving anti-LGBT violence since the 1960s as a means of justifying such violence on grounds that a perpetrator “panicked” upon learning that their victim was gay or transgender.
“The gay and trans panic defenses allow perpetrators of LGBT murders to receive a lesser sentence, and in some cases, even avoid being convicted and punished, by placing the blame for the homicide on a victim’s actual or perceived sexual orientation or gender identity,” the brief says.
“The gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender non-conformity are mental illnesses,” the brief says. “In line with this view, criminal defense attorneys began invoking the gay and trans panic defenses in the 1960s, arguing that an LGBT victim’s unwanted sexual advance caused perpetrators to enter a state of ‘homosexual panic,’ and kill the LGBT victim.”
The brief notes that no state recognizes gay and trans panic defenses as “free-standing” defenses in their criminal codes. Instead, the brief says, defense attorneys have invoked the gay or trans panic defense under three long accepted types of defenses in criminal cases – provocation, diminished capacity and self-defense.
Based on past cases involving LGBT victims of crime, including murder, attorneys have argued that the discovery of a victim’s sexual orientation or gender identity “was a sufficiently provocative act” that drove the defendant to kill or assault the victim “in the heat of passion,” the Williams Institute brief says.
Under the diminished capacity approach, the brief says defense attorneys have argued that their clients’ discovery of a victim’s sexual orientation or gender identity caused them to have a “temporary mental breakdown,” driving them to kill the victim. According to the brief, under the “self-defense” theory, defense attorneys have argued that their client had a “reasonable belief that they were in immediate danger of serious bodily harm” upon discovering that the victim was LGBT.
The brief says its analysis of numerous court rulings on known gay or trans panic defense cases shows that a model bill proposed by the Williams Institute to ban the LGBT panic defense would not violate the constitutional rights of defendants charged in cases involving anti-LGBT violence.
“The model legislation offers language to prohibit defendants from using the gay and trans panic defenses under the major defense theories of provocation, insanity/diminished capacity, and self-defense,” it says.
The proposed bill would ban the gay or trans panic defense for each of these three defense theories “under circumstances in which the victim made an unwanted non-forcible romantic or sexual advance toward the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.”
The brief points out that in 2013, the American Bar Association unanimously approved a resolution calling on state legislatures to pass laws eliminating gay and trans panic defenses. The following year, California became the first state to pass such legislation. Bills calling for banning the LGBT panic defense have since been introduced in Illinois, New Jersey and Pennsylvania.
D.C. Council member David Grosso (I-At-Large) told the Washington Blade he plans to review the Williams Institute brief and would consider introducing such a bill into the Council.
The national office of the ACLU in New York, which has long advocated for the rights of criminal defendants, didn’t immediately respond to a request by the Blade for comment on the Williams Institute brief and proposed legislation to ban the gay and trans panic defense.