There’s good news coming out of California right now — the “gay panic” defense is no longer legal justification for murder.
The “gay panic” defense usually has been used for defendants in murder and assault cases. When using it, a defendant explains that he or she was overtaken by temporary insanity that led him or her to kill the victim. Usually the temporary insanity was sparked by an LGBT person supposedly making a pass at the defendant.
The “gay panic” (sometimes “trans panic”) defense usually isn’t used with the hope of getting a not-guilty verdict, but rather to get a manslaughter conviction instead of murder. Many states characterize a killing that occurs in a quarrel or heat of passion as manslaughter rather than murder because of the lack of premeditation. For a long time it was believed that people with repressed homosexual leanings may be susceptible to “gay panic,” so this is essentially a version of the “temporary insanity” defense — a horribly homophobic one with no scientific basis.
This week, California became the first state to actually ban use of the “gay panic” defense in court. Governor Jerry Brown just signed the bill after it passed the state legislature with convincing majorities.
It’s important to note that the “gay panic” defense hasn’t really been that effective in court, at least not in recent attempts. Some famous cases have included the 2002 killing of Matthew Shepard, a college student in Wyoming. Shepard, a gay man, was brutally beaten and killed by Aaron McKinney and Russell Henderson. The defense attorney attempted to use the “gay panic” defense for McKinney, but the judge barred it.
But still, despite the fact that it’s not often used or believed, California did a great thing by outlawing it. The fact that it existed, even at the periphery, is offensive. First of all, there’s been absolutely no scientific basis to show that “gay panic” is an actual possibility. It’s offensive pseudo-science.
The “gay panic” defense also puts some responsibility on the victim. It implies that the victim did something — coming on to his killer — that led to his death. Using it to protect a murderer is really not that different than saying that a woman deserved to get raped because she was wearing a short skirt. It puts responsibility on the victim, when really, all responsibility should be on the killer. Executive Director of the National LGBT Bar Association, D’Arcy Kemnitz, made an equally apt comparison, saying:
Every time a woman walks past a construction site and a bunch of guys make propositions to her, should she be able to respond in an assault in maybe even a murderous fashion?
Another problem with the “gay panic” defense is that it also legitimizes homophobia — it says that being gay or trans in cases of the “trans-panic” defense is so abhorrent that it could throw someone into a state of insanity.
Even though the “gay-panic” defense has been mostly debunked, California should be applauded for formally delegitimizing it. It’s an important statement, and one that other states would do well to follow.
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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.
Featured image courtesy of [Danny Howard via Flickr]