As we have seen in 2019, there has been an increase of transgender women of color being victims of hate crimes. Considering intersectionality, particular individuals have higher likelihoods of being victims of hate crimes. The defense is rooted in homophobia and transphobia. The LGBTQ+ “panic” defense frequently draws on stigmas particular to LGBTQ+ people, their sexualities, and their genders to justify horrific violence against LGBTQ+ individuals. Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups? In addition, LGBTQ+ “panic” is often employed to justify violence when the victim’s behavior falls short of the serious bodily harm standard, or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed. This defense is offensive and harmful because it argues that a person’s gender or sexual identity makes them more of a threat to safety. Defense of self-defense: Defendants claim they believed that the victim, because of their sexual orientation or gender identity/expression, was about to cause the defendant serious bodily harm.Defendants claiming a “provocative” advance stigmatize behavior which, on its own, is not illegal or harmful, but is only considered “provocative” when it comes from an LGBTQ+ individual. Defense of provocation: The defense of provocation allows a defendant to argue that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim.Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up. Defense of insanity or diminished capacity: The defendant alleges that a sexual proposition by the victim – due to their sexual orientation or gender identity – triggered a nervous breakdown in the defendant, causing an LGBTQ+ “panic.” This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.Traditionally, the LGBTQ+ “panic” defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide. To refer to it as “gay/trans panic” excludes violence against those who do not identify as gay or transgender. The LGBTQ+ Bar uses “LGBTQ+ panic” rather than “gay/trans panic” because the former is an inclusive phrasing which recognizes that the defense strategy impacts all folks in the LGBTQ+ community. What is the difference between the “gay/trans panic” defense and the “LGBTQ+ panic” defense? Despite widespread public protest, the defense is still being used today. The men attempted to use the LGBTQ+ “panic” defense to excuse their actions. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. One of the most recognized cases that employed the LGBTQ+ “panic” defense was that of Matthew Shepard. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others. When a perpetrator uses an LGBTQ+ “panic” defense, they are claiming that a victim’s sexual orientation or gender identity not only explains-but excuses-a loss of self-control and the subsequent assault.
It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses.
The LGBTQ+ “panic” defense strategy is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder.