If you’re familiar with the “gay panic” defense—still shockingly legal in 35 states across the nation—get ready for its shitty cousin, the “criminally negligent homicide” defense.
In states like Missouri and South Carolina—where the gay/trans panic defense is still legal and viable—defendants are still using the claim to escape more severe sentences. Recently, a case in Missouri used the defense to talk a man on death row down to a six-month sentence and 10-year probation period. It’s even more disturbing when you learn the facts of the case: the defendant pretended to be in a relationship with his victim in order to score a car, and “panicked” when the victim made a sexual advance, ending in his murder.
Although LGBTQ+ advocates have been fighting to abolish the gay/trans panic defense since 2013, it remains a common loophole in cases such as these.
“You can’t use that in any other context,” D’Arcy Kemnitz, the executive director of the LGBTQ+ Bar Association, told local reporters at South Carolina outlet WBTW News 13. “You can’t see that somebody can bring it on themselves for being who they are.”
From 1970 to 2020, this defense has been used in court 104 times, according to a study by the Williams Institute. Even worse is the fact that in one third of these cases, the defendent’s sentences were reduced. The gay panic defense works, and that’s what’s so scary about it.
“It absolutely works,” Kemnitz told WBTW, “because you’re playing on the jury members or the judges who are biased against LGBTQ+ people.”
The fact that so many anti-gay and trans bills have showed up in state legislature this years adds another troubling layer to the problem. When society sees a violent “panic” response against trans and queer victims as somehow normal or common, it becomes a handy and convenient excuse, as in the recent Missouri case.
“There’s a bigger picture to consider,” St. Edward’s University Associate Professor of Criminal Justice Carsten Andresen explained after doing a comprehensive study of cases involving the defense. “Gay men and trans women still remain vulnerable to fatal violence because of the gay and trans panic defenses. And the way these defenses play out in court infringes on a victim’s civil rights.”