Why the “Gay Panic Defense” is Discriminatory

Kelsey Braford (PO ’22)

Many people are unaware of the existence of a discriminatory legal strategy dubbed the “gay panic defense.” Uncommon and widely criticized, it is a tactic 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,” according to the LGBT Bar Association. It is used to strengthen a defense case by playing on prejudice and has actually seen some success securing reduced charges and sentencing. 

While this tactic has been commonly referred to as the “gay panic defense” for many years, the LGBT Bar has called for this to change. To better reflect the impact that the defense strategy has had and continues to have, the term “LGBTQ+ panic defense” is a more appropriate and inclusive term, and will be used henceforth. 

The LGBTQ+ panic defense is generally used in three ways. 

To argue that the defendant acted in a diminished capacity. In this case, the defense argues that a victim’s sexual orientation or gender identity triggered the defendant to have a nervous breakdown. This is often in the context of an alleged sexual proposition from the victim. This defense relies on the validity of “homosexual panic disorder,” which was coined by 1920’s psychiatrist Edward Kempf and was removed from the American Psychiatric Association’s DSM in 1973. 

To argue that the defendant was provoked. In this case, the defense argues that a sexual advance or proposition from the victim was provocative and brought about the defendant’s action. This often implies that the alleged proposition was provocative due to the victim’s sexual orientation or gender identity.

To argue that the defendant acted in self-defense. In this case, the defense argues that a victim’s sexual orientation or gender identity made the defendant believe they were threatened. This implies that a person’s sexuality or identity makes them more or less of a threat. This defense is often used to justify violence when the defendant used more force than necessary or the victim’s behavior falls below the standard of serious bodily harm. 

One infamous instance of the LGBTQ+ panic defense is the horrific case of William T. Simpson. In Miami in early August 1964, Mr. Simpson picked up a hitchhiker, Charles Lawrence. Lawrence and his partner, Lewis Killen, regularly posed as hitchhikers to trick motorists into letting them into their vehicle before they robbed them. They deliberately targeted gay men, preying in an area frequented by Miami’s gay community.

Lawrence and Killen had never murdered someone in their robberies before, but for reasons that are unclear something about Simpson “spooked” Lawrence that evening, and he shot and killed Simpson. Despite confessions to the murder from both Lawrence and Killen, at trial, Lawrence claimed Simpson made unwanted sexual advances making him feel unsafe. At the same time, the Miami Daily News was publishing articles that heightened prejudice, saying that homosexuality was a form of sexual psychopathy and referring to the gay community as a “pervert colony.” It is thought that the growing fear and prejudice towards the gay community in Miami at this time influenced the jury, and in court Simpson was referred to as a pervert. During the trial, Lawrence and Killen’s defenses essentially argued that the alleged unwanted sexual advances were provocative and led to the murder Lawrence. It was an effective strategy, Lawrence and Killen were convicted of manslaughter rather than first-degree murder. 

Unfortunately, this strategy has seen significant success. Based on an analysis of 104 cases across the country (which is not an exhaustive list of all cases, but 104 were able to be identified) the LGBTQ+ panic defense reduce a defendant’s murder charges 32% of the time. Since lower charges carry lower sentences, this also reduces sentencing. In addition, many of the cases that utilized this defense strategy were incredibly violent, with perpetrators engaging in various types of overkill. 

The LGBTQ+ panic defense is legally sanctioned discrimination. In addition to perpetuating stereotypes and misconceptions, this strategy victim-blames, arguing that a person’s sexual orientation or gender identity contributed to their own assault or murder. This tactic seeks to excuse a loss of self-control on the part of the defendant. 

In 2013, the American Bar Association adopted a resolution that urged action to curtail this defense strategy. Following this, California became the first state to ban the use of it in 2014. Currently, nine other states have adopted legislation banning it, including Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, and Washington State. In eight other states and the District of Columbia legislation has been introduced but not yet passed. 

On the federal level, legislation was introduced to ban this strategy most recently in 2019, by Senator Markey (D-MA) and Representative Kennedy (D-MA). Together they introduced the “Gay and Trans Panic Defense Prohibition Act of 2019.” As of today, there has been no action to pass this legislation banning this practice on the federal level.

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