Gay panic defense
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The gay panic defense is a legal strategy in which a defendant claims they acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.
The trans panic defense is a closely related legal strategy applied in cases of assault, manslaughter, or murder of a transgender individual with whom the assailant(s) had engaged in sexual relations and claim to have been unaware that the victim was transgender, producing in the attacker an alleged trans panic reaction, often a manifestation of homophobia and transphobia.
Broadly, the defenses may be called the "gay and trans panic defense" or the "LGBTQ+ panic defense". They are often used by men to justify hate-crimes or the intentional assault or murder of gay men or trans women.
The gay panic defense grew out of a combination of legal defenses from the mid-nineteenth century and a mental disorder described in the early twentieth. It seeks to apply the legal framework of the temporary insanity defense, using the mental condition of "homosexual panic disorder".
Temporary insanity defense
Homosexual panic disorder
Psychiatrist Edward J. Kempf coined the term "Homosexual panic" in 1920 and identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings". Kempf coined the term homosexual panic for the condition, and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions. Kempf identified the condition during and after World War I at St. Elizabeths Hospital in Washington, D.C.
The disorder was briefly included in DSM-1 as a supplementary term in Appendix C but did not appear in any subsequent editions of DSM and thus is not considered a diagnosable condition by the American Psychiatric Association.
Unlike the legal defense created later and named after it, the onset of the condition was not attributed to unwanted homosexual advances. Rather, Kempf stated that it was caused by the individual's own "aroused homosexual cravings".
Homosexual panic as a mental health disorder is distinct from the homosexual panic defense (HPD) (also known as "gay panic defense") within the legal system. Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the HPD implies only a temporary loss of self-control.
Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. ... Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.
Victoria passed similar reforms in 2005, followed by Western Australia in 2008 and Queensland in 2017 (with a clause to allow it in 'exceptional circumstances' to be determined by a magistrate). In a differing approach, New South Wales, the ACT and Northern Territory have implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) are not a valid defense.
South Australia was the first Australian jurisdiction to legalize consensual homosexual acts in 1975; however, as of April 2017[update] it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defense. In 2015, the South Australian state government was awaiting the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011, Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principal defense was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defense was that Lindsay's action in stabbing Negre was because he had lost self-control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the directions to the jury on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person would not have lost self-control and acted in the way Lindsay did. The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction, and an application for special leave to appeal to the High Court was dismissed. In April 2017, the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and/or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced.
In April 2019, the government of South Australia announced that the gay panic defense will be repealed. A "community consultation phase" is being set up and a bill will soon be introduced to the Parliament of South Australia and passed and implemented by 2020.
In 2003, a gay interior designer and former television host, David McNee, was killed by a part-time sex worker, Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.
In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.
On 26 November 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defense from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.
Lance Cpl. Joseph Scott Pemberton, a U.S. Marine from Massachusetts, was convicted of homicide (but not of murder) in the killing of Jennifer Laude in a motel room in Olongapo in the Philippines in 2014. Police said that Pemberton became enraged after discovering that Laude was a transgender woman. After Pemberton served six years of a ten-year sentence, President Rodrigo Duterte gave him an "absolute pardon." Sen. Imee Marcos said the pardon would help the Philippines maintain "very deep and very cordial" relations with the US.
Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence" or the "guardsman's defence". The latter term was used in a 1980 episode of Rumpole of the Bailey.
In 2018, Senator Edward Markey (D-MA) and Representative Joseph Kennedy III (D-MA) introduced S.3188 and H.R.6358, respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.
In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019 (S.1721 and H.R.3133). The bills would prohibit 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.
In 2006, California amended its penal code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes. The American Bar Association (ABA) unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses.
Following the ABA's resolution in 2013, the LGBT Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.
On September 27, 2014, Governor Jerry Brown signed Assembly Bill No. 2501, making California the first state in the US to ban the gay and trans panic defense. AB 2501 states that discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation does not, by itself, constitute sufficient provocation to justify a lesser charge of voluntary manslaughter.
In June 2018, H7066aa and S3014, bills to prohibit the gay and trans panic defense passed the Rhode Island Assembly with overwhelming margins: The House voted 68–2 and the Senate voice voted 27-0. The Governor of Rhode Island signed the bill into law a month later in July 2018. The law went into effect immediately.
In 2019, the New York State Legislature once again considered banning the gay panic defense. For the 2019–2020 session, the bills considered were S3293 and A2707; prior versions of the bill have died in committee (S7048, 2013–14 session; A5467/S499, 2015–16 session; A5001/S50, 2017–18 session). On June 30, 2019, the day of the NYC Pride March, Governor Andrew Cuomo signed the ban into law, effective immediately.
In April 2019, both houses of the Hawaii State Legislature passed bills to prohibit the gay and trans panic defense (HB711 and SB2). A conference committee was set up to reconcile the two versions of the bill; the reconciled bill passed both houses on April 26, 2019 and was signed into law two months later, on June 26, 2019, by the Governor David Ige. It went into effect immediately.
In May 2019, the Nevada Legislature passed SB97 to prohibit the gay and trans panic defense used within Nevada state courts and tribunals. On 14 May 2019, Governor Steve Sisolak signed SB97 into law. The law went into effect on 1 October 2019.
In June 2019, the Connecticut General Assembly passed SB-0058 unanimously to prohibit the trans and gay panic defense. The bill was signed into law by Governor Ned Lamont. The law went into effect on October 1, 2019, as per the rules governed under the Constitution of Connecticut.
Also in June 2019, the Maine Legislature passed a bill (House vote 132-1 and Senate vote 35-0), which was signed by Governor Janet Mills on June 21, 2019, to ban the "gay and trans panic defense" effective immediately.
New Jersey passed a bill without a single vote in opposition to ban the gay and trans panic defense; it was signed into law in January 2020.
In February 2020, the Washington State Legislature passed a bill (House vote 90-5 with 3 excused and Senate vote 46-3) to abolish the gay panic defense. The bill was signed into law in March 2020, by the Governor of Washington State Jay Inslee. Washington state becomes the 10th US state to ban the gay panic defense (when the law goes into effect in June 2020).
In July 2020, Colorado became the 11th US state to abolish the gay panic defense.
In December 2020, the Council of the District of Columbia unanimously voted on a bill to ban the use of the "gay and trans panic defense". Mayor Muriel Bowser has said she will sign the measure. The bill will then go Capitol Hill for a 30 legislative day review by Congress, required by the District of Columbia Home Rule Act.
Use of the gay panic defense
The gay panic defense is generally invoked in cases where the guilt of the defendant is unquestioned, but only to strengthen a more "traditional criminal law defense such as insanity, diminished capacity, provocation, or self-defense" and is not meant to provide justification of the crime on its own. While using the gay panic defense to explain insanity has typically not been successful in winning a complete acquittal, diminished capacity, provocation, and self-defense have all been used successfully to reduce charges and sentences.
Historically, in US courts, use of the gay panic defense has not typically resulted in the acquittal of the defendant; instead, the defendant was usually found guilty, but on lesser charges, or judges and juries may have cited homosexual solicitation as a mitigating factor, resulting in reduced culpability and sentences.
A case in which this occurred was the "Jenny Jones" case, in which Jonathan Schmitz was tried for the first-degree murder of Scott Amedure and was instead found guilty of the lesser offense of second-degree murder.
Uses of the trans panic defense
- A trans panic defense was used in 2004–2005 in California by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgender teenager with whom they had engaged in sex, had a penis. Following their initial suspicions about her birth-assigned sex, Araujo was "subjected to forced genital exposure in the bathroom, after which it was announced that she was 'really a man'". The defendants claimed that Araujo's failure to disclose her birth-assigned sex and anatomy was tantamount to deception, and that the subsequent revelation of her birth-assigned sex "had provoked the violent response to what Thorman represented as a sexual violation 'so deep it's almost primal'". The first trial resulted in a jury deadlock; in the second, defendants Mike Magidson and Jose Merél were convicted of second-degree murder, while the jury again deadlocked in the case of Jason Cazares. Cazares later entered a plea of no contest to charges of voluntary manslaughter. The jury did not return the requested hate crime additions to the convictions for the defendants.
- Angie Zapata was beaten to death by Allen Andrade in July 2008. After Andrade learned that Zapata had a penis, she smiled at him and said "I'm all woman"; his defense attorney stated the smile "was a highly provoking act, and it would cause someone to have an aggressive reaction" when arguing to have the charge against him dropped to second-degree murder. Judge Marcelo Kopcow rejected that argument, and Andrade was sentenced to a mandatory sentence of life in prison without the possibility of parole after he was convicted by a jury of first-degree murder in 2009 after two hours of deliberation. The conviction included a hate crime endorsement, believed to be the first instance of a hate crime application when the victim was transgender.
- Islan Nettles was beaten to death in Harlem just after midnight on August 17, 2013. The killer, James Dixon, was not indicted until March 2015, despite turning himself in three days after the attack and confessing that he had flown into "a blind fury" when he realized that Nettles was a transgender woman. Dixon pleaded not guilty to first-degree manslaughter at his indictment. Dixon was not charged with murder, which would have required proof of intent, nor was he charged with a hate crime. During his confession, Dixon said that his friends had mocked him for flirting with Nettles, not realizing that she was transgender. Furthermore, in an incident a few days prior to the beating, his friends had teased him after he flirted with two transgender women while he was doing pull-ups on a scaffolding at 138th Street and Eighth Avenue. Dixon pleaded guilty and received a sentence of 12 years' imprisonment, a sentence that Nettles' mother felt was too lenient.
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The gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender nonconformity are mental illnesses (Lee, 2013).
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Phillip Layton Edwards has appealed against his nine-year prison sentence for the manslaughter of television interior designer David McNee, claiming other young men who killed in similar circumstances received shorter jail terms. In the Court of Appeal at Auckland yesterday, his lawyer Roy Wade pointed to two cases in which young men who killed an older man who made homosexual advances received terms of four and three years ... Mr McNee, 55, the star of television show 'My House, My Castle', died in the bedroom of his St Mary's Bay home in July 2003 after choking on his own vomit while unconscious. Edwards had hit him 30 to 40 times in the head and face in a beating a pathologist described as severe.
- Boland, Mary Jane (9 July 2006). "Move to end provocation defence for gay murders". The Sunday Star-Times. p. 8.
The McNee case was a classic example of the law not protecting gay men," Lambert said. "It's abhorrent to suggest that we should downplay the seriousness of what Edwards did because he was hit on.
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An act to add Section 1127h to the Penal Code, relating to crime.
[Approved by Governor September 28, 2006. Filed with Secretary of State September 28, 2006
- "The Gwen Araujo Justice for Victims Act". California Secretary of State. 22 February 2005. Retrieved 1 June 2019.
SEC. 3. Section 1127h is added to the Penal Code, to read:
1127h. In any criminal trial or proceeding, upon the request of a party, the court shall instruct the jury substantially as follows:
"Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes bias against the victim or victims, witnesses, or defendant based upon his or her disability, gender, nationality, race or ethnicity, religion, gender identity, or sexual orientation."
SEC. 4. The Office of Emergency Services shall, to the extent funding becomes available for that purpose, develop practice materials for district attorneys' offices in the state. The materials, which shall be developed in consultation with knowledgeable community organizations and county officials, shall explain how panic strategies are used to encourage jurors to respond to societal bias against people based on actual or perceived disability, gender, including gender identity, nationality, race or ethnicity, religion, or sexual orientation and provide best practices for preventing bias from affecting the outcome of a trial.
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An act to amend Section 192 of the Penal Code, relating to manslaughter.
[Approved by Governor September 27, 2014. Filed with Secretary of State September 27, 2014.]
SECTION 1. Section 192 of the Penal Code is amended to read:
192. Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary—upon a sudden quarrel or heat of passion.
(f) (1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.
(2) For purposes of this subdivision, "gender" includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person's gender as determined at birth.
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The gay-panic defense is a specific type of provocation defense in which the defendant claims that the crime in question was the result of a sudden and intense passion provoked by the victim’s unwanted same-gender sexual advance. It is primarily used by straight men claiming that they found the experience of an unwanted same-gender sexual advance so upsetting that they temporarily became enraged and lost control of their own behavior (Lee, 2008). Chen (2000) argues that the acceptance of a gay-panic defense implies acceptance of a nonviolent same-gender sexual advance as an adequate trigger to cause a person to fall into an uncontrollable state of panic. If jurors collectively agree that the reaction was reasonable, they can find the defendant guilty of a lesser offense, which often results in a lesser sentence (Lee, 2008).
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