On December 16th, 2020, the legislature of the District of Columbia (D.C.) voted unanimously to ban the “gay/trans panic” defense, making it the first American city to do so and joining the 11 other states which had done so already. The “gay/trans panic defense,” or the “LGBTQ+ panic” defense as it is more appropriately referred to, is defined by the LGBT Bar as “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.” Ultimately, this defense has allowed perpetrators of violent and hateful crimes against LGBTQ+ individuals to escape legal culpability and position the victims as the ones who are “deviant” or to blame.
The fact that this defense is still relevant may seem astonishing as the United States is often perceived as one of the most progressive nations when it comes to LGBTQ+ rights and acceptance. While this may appear to be true from the outside looking in, the American legal system tells a different story.
A History of Discrimination
Homosexuality and other expressions of sexuality/gender have long been stigmatized in the international context and in the United States. Christianity, the historically dominant religion in the United States and a central influence in American political and legal structures, has been widely interpreted in the Western context as condemning homosexuality and declaring it a sin. Whether this is an accurate interpretation of the Bible is an entirely different question, and much of the literature and scholarship surrounding the relationship between Christianity and homosexuality counters this claim. While many Christians today are taking a more progressive approach, many factions within the United States historically have applied a more literal interpretation and thus, due to the primacy of Christianity in early American society, anti-LGBTQ+ sentiments are increasingly present.
In the late 19th century and the early 20th century, scientific research was becoming increasingly important, and thus justifications for anti-LGBTQ+ rhetoric within the field of psychology became more prominent. Instead of understanding homosexuality as a sin, medical professionals began to describe it as a mental disorder. In 1920, Edward J. Kempf coined the term “acute homosexual panic” which was described as “a panic due to the pressure of uncontrollable sexually perverse cravings.” While Kempf was clearly not the first individual to describe homosexuality as deviant behavior, his contribution would have long-standing effects. In the first edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), published in 1952 by the American Psychiatric Association, homosexuality was classified as a mental disorder, and it would not be until the publication of the DSM III in 1987 that this classification was removed. Infamous neurologist and psychoanalyst Sigmund Freud also promoted questionable views about homosexuality. In his opinion, lesbianism was “a gateway to mental illness” and was “curable by psychoanalysis.”
The Legal and Social Justifications
Around the same time that these ideas surrounding homosexuality were established in the sphere of psychology, the legal defense referred to as “temporary insanity” became more prevalent. This defense describes the perpetrator as being in a delusional state when committing a crime, or as being out of control because of some sort of short-term mental break. Successfully applying this defense is notoriously difficult, given that proving the perpetrator’s mental state immediately before and after the crime, and/or if the perpetrator was claiming to have these symptoms in hindsight is difficult.
In addition, traditional ideas of masculinity and manhood were very much existent in the United States at this time: throughout the 20th century (and today), it is generally assumed in American culture that men are dominant and thus are the ones who “make the first move” when initiating a relationship or a sexual encounter. The flip side of this is that if men don’t make the first move, they are seen as weak or “less of a man.” Whatsmore, if a man is approached and hit on by another man, he can now be seen as being in the “weaker” or more passive position, and feels the need to reassert his dominant status, often through violence and aggression. Thus, the combinination of the temporary insanity defense with notions of traditional masculinity and the widespread understanding of homosexuality as a mental disorder created the legal atmosphere out of which the “LGBTQ+ panic” emerged.
When has it been employed?
One of the most famous instances of the use of this defense was in the case of Matthew Shepard. On October 7th, 1998 in Laramie, Wyoming, Matthew was brutally assaulted by two men, Aaron McKinney and Russell Henderson, who then tied him to a fence and left him to die. Matthew was discovered almost 18 hours after the initial assault occurred, and was then rushed to the hospital but unfortunately succumbed to his injuries. In the trials of McKinney and Henderson, the defense attorneys claimed that Matthew provoked the two men by allegedly making an advance on one of the men, which then caused them to fly into a rage. Fortunately, the judge did not buy into this narrative, and both men were sentenced to two consecutive life sentences for kidnapping and murder.
Another heartbreaking case is that of Jennifer Laude: on October 11, 2014, in the city of Olongapo, Philippines, Jennifer, a trans woman of color, was beaten, strangled, and drowned to death by US Marine Joseph Scott Pemberton. Pemberton testified that he was initially unaware of Jennifer’s status, so after learning about her gender identity, he claimed he felt as though she had “raped” him. Throughout the trial, Jennifer’s character and identity were grossly attacked and used as justification for her murder. Even worse, Pemberton was sentenced to only 10 years in jail in an American prison for the crime of homicide (a lesser charge than murder), and would later be fully pardoned by infamous Filipino dictator Robert Duterte.
As of today, 39 states and 5 territories do not prohibit the use of the “LGBTQ+ panic” defense and those states who have passed legislation prohibiting it have only done so rather recently. The 11 states which have prohibited this defense are New York, California, New Jersey, Maine, Rhode Island, Washington, Nevada, Colorado, Illinois, Connecticut, and Hawaii. For example, Colorado and Washington only implemented legislation banning this defense earlier this year and New York only did so in 2019. While the use of LGBTQ panic defense is usually unsuccessful, the fact that such an archaic law is still in place in the majority of the American states is sufficiently disturbing. Also the fact that so many perpetrators of crimes against LGBTQ+ people, especially against those who are BIPOC, disabled, or sex workers, are not even brought before a court is deplorable and is a blatant denial of justice. If the United States wants to promote a “progressive” image, it needs to actually take a long hard look at its outdated and offensive laws, and work towards the actual, tangible protection of LGBTQ+ people and other marginalized groups.