The good news is that Illinois Governor Bruce Rauner has signed a bill into law that prohibits defendants from using the gender identity and sexuality of their victims as a motive for violence. Illinois is the second state to do so following California’s precedent in 2014. This means the state’s courts will no longer recognize the argument that the LGBTQ community poses a threat to society, which has been used for the past 50 years to justify the actions of their murderers. The bad news is that this argument is still a legal murder defense in 48 other states.
Back in 2013, the American Bar Association (ABA) urged federal, state, and local governments to legislatively ban the use of the gay and trans panic defense by criminal defendants. Yet to this day, in every state except for California and Illinois, a person can use this courtroom strategy to excuse the assault or murder of another human being, explaining it as a reasonable response to an otherwise irrational fear of gay and trans people.
To illustrate the absurdity of that with a comparison, there are more states that prohibit the open-carry of firearms than there are states that prohibit this rationale for violence.
Male Murderers as Victims: A Dangerous False Narrative
The defendant’s justification for their crime rests solely on the excuse that the victim’s sexual orientation caused the defendant’s uncontrollable violent reaction toward the victim. This pseudo psychiatric condition, known as homosexual panic, was once thought to a be a symptom of sexual perversion. Today though, the American Psychiatric Association no longer recognizes homosexual panic as a formal diagnosis of mental illness.
Nevertheless, the defense in these cases claims temporary insanity on the grounds that the defendant finds same-sex sexual advances so offensive and frightening that they are overcome by a psychotic rage of unusual violence.
Cynthia Lee, Professor of Law at George Washington University, found in her analysis of the “gay panic” that the defendants in all the cases studied were heterosexual males. In the opening statement of her 2008 published article on the subject, she specifically states that straight men have exclusively used the gay panic defense: “‘Gay panic’ refers to the situation when a heterosexual man charged with murdering a gay man claims he panicked and killed because the gay man made an unwanted sexual advance upon him.”
First used in a United States court of law in 1965, this defense created a dangerous legal precedent. It puts the victim on trial, feeds on hatred and fear, and gives permission for legal, justifiable murder in non-life-threatening situations.
Christopher Clark, Midwest Regional Director for Lambda Legal, explains in a statement why this defense frightens the LGBTQ community: “‘Gay panic’ and ‘trans panic’ defenses rely on anti-LGBT bias and reinforce it, perpetuating a vicious cycle of violence against our communities.” Professor Lee labeled the gay panic argument as problematic because it “reinforces and promotes negative stereotypes about gay men as sexual deviants and sexual predators.”
The gay and trans panic defense flips the script, creating a false-narrative in which the assailant is the victim of homosexual seduction, and the victim is the guilty aggressor. The implication is that antiquated religious ideals of sexual virtue are valued above human life. The purpose is to persuade juries to give a verdict of “not guilty,” and judges to lessen the punishment due to mitigating circumstances.
In the opening segment of her February 29, 2008, daytime talk show, Ellen DeGeneres responded to the news that a teenager in California had been murdered by his classmate for expressing his love to him:
“On February 12th, an openly gay 15-year-old boy named Larry who was an eighth-grader in Oxnard, California was murdered by a fellow eighth-grader named Brandon. Larry was killed because he . . . was gay. Days before he was murdered, Larry asked his killer to be his Valentine. […] Somewhere along the line the killer Brandon got the message that it’s so threatening and so awful and so horrific that Larry would want to be his Valentine that killing Larry seemed to be the right thing to do. And when the message out there is so horrible, that to be gay you can be killed for it, we need to change the message.”
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