I’m the kind of person that you see anywhere, and they probably have their earbuds in, whether it’s listening to music or a podcast. I am never more than 10 feet from my listening devices. I was listening to a podcast I had started only a few days ago. The topics generally have to do with true crime, missing, and unsolved cases. I was listening to this particular episode on the podcast that caught me more off guard than any of the other cases I have heard. Imagine this, you are a parent, sibling, friend, or loved one to a person viciously and brutally beaten or murdered. They caught the person or persons that committed something so heinous, and they claim they did do the crime.
However, they did it because the victim’s sexual orientation made them panic in some way. That caused them to lose it. The worst part of the whole situation, the court allows that defense and trial continue with the blame for the brutality being placed on how the victim identified themselves. Hard to believe, right? Well, it’s a real thing. The LGBTQ+ “Panic” or as it’s more commonly known as the “Gay/Trans Panic” defense has been used in several cases and has actually worked in a court of law.
Before listening to that podcast episode, I didn’t know anything about this defense, neither did my family or others that I talked to, even though this has been around since the 1920s. Psychiatrist, Dr. Edward Kempf coined the phrase “homosexual panic” after he saw a pattern in which patients identified as heterosexual but had an attraction to members of the same sex in 1920. Kempf theorized that patients were suffering from a conflict mentally with what society saw as “normal.”
Attraction to the opposite sex and their attraction to the same sex. The patients were identifying with what they felt they should identify as, rather than what they actually are, and being confused with their feelings because it was seen as unacceptable. In 1952 it became an actual, diagnosable, mental illness under the name “Homosexual Panic Disorder” by the American Psychiatric Association. Later, criminal defense teams in 1967 used that same “diagnosis” as a reason their client committed murder after the victim made some kind of sexual advance toward the defendant. At the time, it was used as an insanity defense that claimed mental disease or defect at the time the crime took place (1). The defense, or should I say excuse, being used in a court of law, has been going on since. The latest case of this defense was as early as 2015, even though it is no longer seen as a mental illness by psychiatrists. According to Cynthia Lee, the idea for this defense is a mirroring of dormant norms of masculinity and allows violence toward homosexual males rather than non-violence (1).
It’s a sickening idea that advocates for something being seemingly justified if the person identifies differently than what you believe in. According to the LGBT Bar, “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” (2). This allows someone to claim the victim is the reason for their actions without claiming self-defense. There is a significant difference between the definitions. Self- defense is the right for someone to use reasonable force in a situation in which there is reason to believe that there is danger (3).
That is a far cry from what the “Gay/Trans Panic” defense is trying to accomplish. What it is trying to accomplish is it is giving someone the ability to commit brutality, and obvious hate crimes against people that do not identify as what some people would deem as a normal identity. In 2007, sexual orientation ranked third in hate crime motivations along with race and religion. In July 2019, eight states banned and denounced the legitimacy of the defense, and there are currently ten states in America that have banned the defense from the legal system. Nine states are presently undergoing reviews of banning and denouncing the defense as legitimate (2,4).
There is still work that needs to be done to ban and denounce the legitimacy of this defense completely. Anyone can write a letter to state senators or local legislators. Even something as simple as supporting the LGBTQ+ community and advocacy groups can be a step closer to ending this horrible defense. Any support that can be given and shown regardless of who they are can make a difference.
- Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008)
- LGBTQ+ “Panic” Defense. (2020, March 12). Retrieved June 20, 2020, from https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/
- Legal Dictionary – Law.com. (n.d.). Retrieved June 23, 2020, from https://dictionary.law.com/Default.aspx?selected=1909
- The Gay/Trans Panic Defense: What It is, and How to End It. (n.d.). Retrieved June 20, 2020, from https://www.americanbar.org/groups/crsj/publications/member-features/gay-trans-panic-defense/
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