On October 6th, 1998, Matthew Shepard, 21, was killed in what has been called one of the worst anti-gay hate crimes in American history. According to the Federal Bureau of Investigations, a hate crime is defined as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Sheppard was beaten, pistol whipped, burned, tied to a fence on the side of a highway, and would eventually die in a hospital after several days in a comatose state. Shepard was an openly gay college freshman and a member of his college’s LGBT student group. Eleven years after Shepard’s death, a hate crimes prevention act in Shepard’s name was enacted into law as a result of the continuous work by LGBT advocates. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 provides funding assistance to state and local governments to “help them to more effectively investigate and prosecute hate crimes.”
However, the prosecution of hate crimes is sometimes thwarted by the use of “gay panic” and “trans panic” defense; a legal strategy used to justify violent crimes perpetrated against the LGBT community. According to the Wyoming Historical Society and the LGBT Bar Association, Aaron McKinney, one of Shepard’s killers unsuccessfully tried to mount the “gay panic” defense. The “gay panic” or “trans panic” defense is when “The perpetrator claims that the victim’s sexual orientation or gender identity not only explain – but excuse – their loss of self-control and subsequent assault of an LGBT individual.” Mckinney’s lawyer argued that, “the crime was triggered by a combination of McKinney’s drug and alcohol use, traumatic youthful homosexual episodes and an unwanted sexual advance by Shepard.” Despite the legislative action taken to further prevent hate crimes, such as the murder of Matthew Shepard, the homophobic and illegitimate defense mounted during Shepard’s murder trial is still legal in almost all fifty states in the U.S. except California and Illinois. This defense is meant to mitigate or fully acquit perpetrators of crimes against LGBT victims by using existing prejudices around LGBT victims as evidence in defense of their killers.
The “gay panic” or “trans panic” defense has been used in courts across the country and has been successfully used in several cases to mitigate crimes against LGBT victims; for example in the case of Scott Amedure (1995) in which the defense used the “gay panic” defense to excuse Amedure’s murder. Scott Amedure was killed by Jonathan Schmitz as a result of multiple gunshot wounds to the chest three days after Amedure revealed he had feelings for Schmitz on a daytime talk show. The defense argued that Schmitz “was in a panic that he was being falsely accused or identified as a gay person.” Schmitz’s defense convinced the court to change the sentence from premeditated murder to second-degree murder. As a result of this lesser charge, Jonathan Schmitz was granted parole and was released from prison in 2017. Violent crimes against LGBT victims, such as the murder of Scott Amedure, should not be seen as less worthy of harsh punishment.
The “trans panic” defense was also used in the 2014 murder trial of Jennifer Laude to mitigate the crime from “murder” to “homicide” which carries with it a separate standard and lesser charge. Jennifer Laude was a 26 year-old trans women who was strangled to death by Joseph Pemberton. In Laude’s case, the defense argued that Pemberton “acted to defend his honor after discovering Laude had a penis…that Pemberton was a victim of the fraud… and lashed out upon discovering that he’d been scammed.” This case is a clear example of the “trans panic” defense being used to severely misjudge the response expected of the defendant. According to the LGBT Bar Association, “Murder is not an acceptable reaction to a non-violent sexual encounter, regardless of the victim’s sexual orientation or gender identity/exp.” The fact that the court allowed the defense to successfully blame Laude for her own death because she was transgender and the supposed threat her gender identity posed to Pemberton’s “honor” is deplorable and unjust.
In addition to cases where provocation is argued by the defense, “gay panic” and “trans panic” have been used to argue insanity or diminished capacity. “Homosexual panic disorder” which theorizes that, “a person with latent gay tendencies will have an uncontrollable, violent reaction when propositioned by a homosexual” is the psychological disorder in which the “gay panic” and “trans panic” defense base their psychological evidence. However, “homosexual panic disorder” is no longer recognized by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders” since the homosexuality was removed from the American Psychiatric Association’s list of Mental Illnesses in 1973 thus destroying any scientific legitimacy behind the “gay panic” and “trans panic”defense.
Other legal analysts and public policy experts argue that instead of banning these arguments, we should be facing these defenses head on in court. However, the logic behind the “gay panic” and “trans panic” defense is a part of the problem. Examples of this logic has been seen not only in defense strategies, but in police investigations.Detective Fil Waters of the Houston Police Department on the murder of Brandi Seals, a 26-year-old transgender woman, in Houston stated,“The fact that we have a man in women’s clothing, the speculation is he’s been working the street, that someone picks up and then realizes he’s not what he’s representing himself to be and take this kind of ultimate action.” As the LGBT Bar Association puts it best, “gay panic” and “trans panic” defenses “imply that LGBT lives are worth less than others.” LGBT victims deserve equal treatment under law and the use of “gay panic”or “trans panic” defenses rob victims of this principle by using aspects of their identity as an excuse for their own death.
Gay panic” and “trans panic” defense strategies completely rely on the prejudice of individual judges and jury members due to the fact the defense no longer has any legitimate scientific basis or reasonable argument for provocation. Because of this, The American Bar Association unanimously approved a resolution “calling for an end to these heinous defense arguments.” However, some have argued that legislative action on the use of the “gay panic” or “trans panic” defense is not necessary because it is rarely used in the court of law. Although “gay panic” and “trans panic” defenses are rarely used, it is necessary and important that LGBT victims are given the same treatment as heterosexual or cisgender victims. One’s sexual orientation or gender identity is never grounds for committing an act of violence and should not be used to excuse violent crimes. This must be a law and not a principle that can be ignored by defense teams hoping to use a victim’s identity to mitigate a court ruling.