Gay panic defense


The gay panic defense is a legal strategy in which a defendant claims they acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.
Rooted in both homophobia and transphobia, is a closely related defense applied in cases of assault, manslaughter, or murder of a transgender individual, with whom the assailant engaged in sexual relations unaware that the victim is transgender until seeing them naked, or further into or after sexual activity.
Broadly, the defenses may be called the gay and trans panic defense or the LGBTQ+ panic defense. They are typically used by heterosexual cisgender men against gay men and trans women.

Jurisdictions

Australia

In Australia, it is known as the "homosexual advance defence". Of the status of the HAD in Australia, Kent Blore wrote:
Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.

Victoria passed similar reforms in 2005, followed by Western Australia in 2008 and Queensland in 2017. In a differing approach, New South Wales, the ACT and Northern Territory have implemented changes to stipulate that non-violent sexual advances are not a valid defense.
South Australia was the first Australian jurisdiction to legalize consensual homosexual acts in 1975; however, as of 2017 it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defense. In 2015 the South Australian state government was awaiting the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011 Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principal defense was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defense was that Lindsay's action in stabbing Negre was because he had lost self-control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the directions to the jury on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person could not have to lost self-control and acted in the way Lindsay did. The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction, and an application for special leave to appeal to the High Court was dismissed. In April 2017 the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and / or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced.
In April 2019, the government of South Australia announced that the gay panic defense will be repealed. A "community consultation phase" is being set up and a bill will soon be introduced to the Parliament of South Australia and passed and implemented by 2020.

New Zealand

In 2003, a gay interior designer and former television host, David McNee, was killed by a part-time sex worker, Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.. In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.
On 26 November 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defense from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.

United Kingdom

Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence" or the "guardsman's defence".

United States

Federal laws

In 2018, Senator Edward Markey and Representative Joseph Kennedy III introduced S.3188 and H.R.6358, respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.
In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019. The bills would prohibit a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance or an individual or a perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense.

State laws

In 2006, California amended its penal code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes. The American Bar Association unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses.
Following the ABA's resolution in 2013, the LGBT Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.
StateConsideredBannedBillRef
California—2014AB2501
Illinois—2017SB1761
Rhode Island—2018H7066aa/S3014
Connecticut—2019SB-0058
Hawaii—2019HB711
Maine—2019LD1632
Nevada—2019SB97
New York2014—S7048
New York2015—A5467/S499
New York2017—A5001/S50
New York—2019A2707/S3293
New Jersey2015—A4083
New Jersey2016—A429
New Jersey20182020A1796/S2609
Washington, D.C.2017—B22-0102
Georgia2018—HB931
Minnesota2018—HF3045/SF2633
Pennsylvania2018—SB1244
Massachusetts2019—S870
New Mexico2019—SB159
Texas2019—HB3281
Washington20192020HB1687

On September 27, 2014, Governor Jerry Brown signed Assembly Bill No. 2501, making California the first state in the US to ban the gay and trans panic defense. AB 2501 states that discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation does not, by itself, constitute sufficient provocation to justify a lesser charge of voluntary manslaughter.
In August 2017, Bruce Rauner, Governor of Illinois, signed SB1761, banning the gay and trans panic defenses in that state.
In June 2018, H7066aa and S3014, bills to prohibit the gay and trans panic defense passed the Rhode Island Assembly with overwhelming margins: The House voted 68–2 and the Senate voice voted 27-0. The Governor of Rhode Island signed the bill into law a month later in July 2018. The law went into effect immediately.
In 2019, the New York State Legislature once again considered banning the gay panic defense. For the 2019–2020 session, the bills considered were S3293 and A2707; prior versions of the bill have died in committee. On June 30, 2019, the day of the NYC Pride March, Governor Andrew Cuomo signed the ban into law, effective immediately.
In April 2019, both houses of the Hawaii State Legislature passed bills to prohibit the gay and trans panic defense. A conference committee was set up to reconcile the two versions of the bill; the reconciled bill passed both houses on April 26, 2019 and was signed into law two months later, on June 26, 2019, by the Governor David Ige. It went into effect immediately.
In May 2019, the Nevada Legislature passed SB97 to prohibit the gay and trans panic defense used within Nevada state courts and tribunals. On 14 May 2019, Governor Steve Sisolak signed SB97 into law. The law went into effect on 1 October 2019.
In June 2019, the Connecticut General Assembly passed SB-0058 unanimously to prohibit the trans and gay panic defense. The bill was signed into law by Governor Ned Lamont. The law went into effect on October 1, 2019 as per the rules governed under the Constitution of Connecticut.
Also in June 2019, the Maine Legislature passed a bill, which was signed by Governor Janet Mills on June 21, 2019 to ban the "gay and trans panic defence" effective immediately.
As of June 2019, similar bills have been introduced in several other states and the District of Columbia.
New Jersey passed a bill without a single vote in opposition to ban the gay and trans panic defense; it was signed into law in January 2020.
In February 2020, the Washington State Legislature passed a bill to abolish the gay panic defence. The bill was signed into law in March 2020, by the Governor of Washington State Jay Inslee. Washington state becomes the 10th US state to ban the gay panic defense.
In July 2020, Colorado became the 11th US state to abolish the gay panic defense.
See: LGBT rights in Colorado

Uses of the gay panic defense

The gay panic defense is generally invoked in cases where the guilt of the defendant is unquestioned, but only to strengthen a more "traditional criminal law defense such as insanity, diminished capacity, provocation, or self-defense" and is not meant to provide justification of the crime on its own. While using the gay panic defense to explain insanity has typically not been successful in winning a complete acquittal, diminished capacity, provocation, and self-defense have all been used successfully to reduce charges and sentences.
Historically, in US courts, use of the gay panic defense has not typically resulted in the acquittal of the defendant; instead, the defendant was usually found guilty, but on lesser charges, or judges and juries may have cited homosexual solicitation as a mitigating factor, resulting in reduced culpability and sentences.
The most famous case in which this occurred was the "Jenny Jones" case, in which Jonathan Schmitz was tried for the first-degree murder of Scott Amedure and was instead found guilty of the lesser offense of second-degree murder. Some instances where the gay panic defense has been invoked include:
people often experience heightened stigma due to their gender identity.