‘Panic’ Defense Endangers the LGBTQ+ Community
The damaging stigmas and prejudices around the LGBTQ+ community bleed into violent hate crimes and unjust legal defenses
Story by Cameron Sires
Stigmas surrounding the LGBTQ+ community are taught by the things we see and hear from those around us. Media also plays a significant role in disseminating and amplifying messages that are derogatory and prejudiced. For example, in entertainment, gay males are often shown only as flamboyant and lesbians as masculine.Transgender people tend to be shown in an exaggerated joking manner or as a victim in crime shows. People within and outside of the LGBTQ+ community have squashed the legitimacy of bisexuality, denying or questioning if it’s even a real thing. Media follows this notion with a lack of representation, if once in a blue moon they are included, they arent identified as a bisexual.
90% of Americans said they personally know someone in their life who is lesbian, gay or bisexual. The Human Rights Campaign says four in ten Americans personally know someone who is transgender. However, these statistics don’t indicate if these people who personally know an LGBTQ+ person is accepting of them or if they’re actively educating themselves on LGBTQ+ issues.
If you are basing the entire LGBTQ+ community off of one person, how is that any better than what you see in entertainment?
These stereotypes lay a foundation for straight or cisgender people who are unfamiliar with LGBTQ+ individuals to justify their hateful actions and biased thoughts against people in the LGBTQ+ community, but it doesn’t end at being derogatory. These rooted stigmas can lead to much more violent outcomes, such as murder.
We cannot just look at the individuals who are perpetuating violence towards the LGBTQ+ community. We must look at the aftermath of an attack to understand why anyone thought they needed to commit violent actions against LGBTQ+ people and how that thought process is treated during trial.
Some state laws allow tactics such as the LGBTQ+ “panic” defense which puts the community in greater danger and gives loopholes for homophobic and transphobic people to achieve lesser sentences for murdering LGBTQ+ people.
The LGBTQ+ “panic” defense is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.
This defense is now banned in the state of Washington, effective June 6, 2020. Nine other states have also banned this tactic, leaving 40 more states with legal precedent to enact this defense.
While this strategy is not a get-out-of-jail-free card for the attacker, it can work in their favor even when the case is cut and dried. Yet somehow, a person’s sexual orientation or gender identity becomes a way to pin the murder on the victim, even when there is no evidence the victim tried to make provocative advances on the defendant.
The LGBT Bar provides a timeline that explains some cases that used this strategy. In 1995, Scott Amedure had been a guest on “The Jenny Jones show”. The talk show host was trying to get juicy details of guests’ secret admirers. Amedure shared he had a crush on his friend Jonathan Schmitz, who was invited to come to the show. Three days later Schmitz showed how he felt about this announcement on The Jenny Jones Show, of course not with his words, but with two bullets to Amedure’s heart.
At trial, Schmitz used the LGBTQ+ “panic” defense in favor of his actions saying he suffered from “gay panic disorder” when he became aware of Amedure’s crush on him. The jury reduced Schmitz charges from premeditated, a murder that is planned before it was committed, to second-degree murder, which requires intention of murder but lacking premeditation.
This is far from the only case. A recent and well-known case in 2015 involved two men in Austin, Texas. Daniel Spencer and James Miller were neighbors and both musicians. Spencer invited Miller over to play music and drink together. That night Miller claimed Spencer tried to kiss him. Instead of a civil conversation about what happened, Miller stabbed Spencer multiple times in the back, in Spencer’s own home.
Miller cleaned up Spencer’s apartment, went home and changed his clothes, then called the police to report he had killed Spencer. In the 2018 trial the defense attorney argued that Miller had never been in trouble with the police, and because of that loose argument, the only thing that made sense is Spencer had tried to sexually assault Miller. I say this is a loose argument because a clean record does not indicate innocence. I also say loosely because there was no physical evidence to suggest an attempted assault. In this case, the LGBTQ+ “panic” defense was successful. The jury convicted Miller of the lowest grade of felony murder in Texas, criminally negligent homicide.
The final verdict? Miller got away with six months in jail and a 10-year probation.
“I always hear we have come so far, and I agree we have, but we are also far from reaching the goal. The fight for LGBTQ+ equality is far from over when we live in a country where states give a lesser sentence to murderers because of how the victim expresses themselves or who they choose to love.”
In 1998, Matthew Shepard in Laramie, Wyo., was murdered. The defendants tried to use the LGBTQ+ “panic” defense to warrant the torture and murder of Shepard because of a provocative proposition he made. This gave the defendants an “irresistible impulse” to murder. However, the American Bar Association said, “in the state of Wyoming, irresistible impulse is not a defense allowed under the statutory insanity defense construct. The LGBTQ+ panic defense was inadmissible, not due to the illegitimacy of it, but instead due to Wyoming’s statutory insanity defense construct.”
This defense strategy can’t stand alone in court as the defendants only rebuttal to why they attacked an individual, they must also support three theories. The defendant first has to argue that the knowledge of the victim’s sexual orientation or gender identity was a sufficiently provocative act that drove them to kill. Second, the defendant has to have a solid argument that their discovery or potential disclosure of a victim’s sexual orientation or gender identity caused them to go into a temporary mental breakdown, driving them to kill. Third, the defendant has to support a theory of self-defense, where they feel they were in immediate danger or serious bodily harm based on the disclosure of victims’ sexual orientation or gender identity.
I can’t help but let out an obnoxious sigh at these fragile arguments. They stem from those same stigmas and prejudices that I talked about earlier. If people feel serious bodily harm, temporary mental breakdowns and murder because they are scared of someone’s sexual orientation or gender identity, what does that say about the narrative America has formed around the LGBTQ+ community?
As a society, we’ve seen time and time again that we choose ignorance over educating ourselves. Not just when it comes to LGBTQ+ violence and hardship, but when it comes to violence against different races, ethnicities and religions. FBI data that was last recorded in 2018 shows that 4,047 hate crimes occurred because of someone’s race or ethnicity, 1,419 because of someone’s religious belief, 1,196 because of someone’s sexual orientation, and 168 because of someone’s gender identity.
According to the Human Rights Campaign the FBI data showed an increase by almost 6% in hate crimes against LGBTQ+ individuals since 2017. There was also a 42% increase in crimes directed against transgender and gender non-conforming individuals.
But take that data with a grain of salt. According to the Human Rights Campaign and NBC News, reporting hate crimes to the FBI is not mandatory. The number of law enforcement agencies reporting hate crime data decreased by 110 from 2017 to 2018. These statistics surely only show a fraction of such violence. The consequences LGBTQ+ individuals have to deal with when opening up about violence is also a big factor in why hate crimes go unreported. The Human Rights Campaign says the fear of discrimination, retaliation, harassment, or being outed to friends and family can be a reason for hate crimes not being reported.
I always hear we have come so far, and I agree we have, but we are also far from reaching the goal. The fight for LGBTQ+ equality is far from over when we live in a country where states give a lesser sentence to murderers because of how the victim expresses themselves or who they choose to love.
Steps are being made to prohibit the LGBTQ+ “panic” defense at the federal level. On June 5, 2019 the “Gay and Trans Panic Defense Prohibition Act of 2019” bill was introduced to the Senate. The sponsor of this bill, Senator Edward J. Markey, said, “this bill generally prohibits a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance of 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.”
The last actions have been that the Senate has read the bill twice and referred to the Judiciary Committee, but has yet to pass the introductory stage.
The LGBTQ+ “panic” defense law is a prime example of the issues that fly under the radar when the LGBTQ+ community is not represented or forgotten. We need to bring attention to why these kinds of strategies are created and more importantly why they are still allowed to be used. Bring the issues into conversations with your family and friends, spread awareness on social media, contact legislators or governors that are trying to ban the gay/trans defense, and research where you can support organizations that support the LGBTQ+ community. This issue might seem bigger than you, but if everyone thinks this nothing will change.