Illinois Just Outlawed the ‘Gay Panic’ Defense—But 48 States Still Allow It

· Updated on June 20, 2018

Illinois has become the second state to ban the “gay panic” defense after Republican Gov. Bruce Rauner signed a bill on Friday outlawing the controversial legal argument.

The Illinois General Assembly passed State Bill 1761 in June following a unanimous vote of the House of Representatives. Often used in murder cases, the “panic” defense suggests that a defendant was not culpable for their actions because the victim’s sexuality or gender identity triggered a form of temporary insanity. At the time of writing, California is the only other state with laws on the books prohibiting this argument from being used in courts.

LGBTQ advocates in Illinois championed the bill’s passage.

“This is a huge achievement,” says Equality Illinois president Brian Johnson in a press release. “While these cases are rare, they are shocking and rooted in irrational and deep-seated fears and prejudice against LGBTQ people. LGBTQ people have historically faced and continue to suffer disproportionately high rates of violence.”

Statistics from 2016 show that LGBTQ people are more likely than members of any other group to be targeted in a hate crime, with trans women of color facing the highest risk of violence. Eighteen transgender people have been killed so far this year. Allowing these victims’ murderers to claim that their deaths were morally justifiable perpetuates the stigma and fear that led to their deaths, advocates say.

“It is the right and just thing to do,” openly gay state Rep. Greg Harris tells INTO in an email. “It makes no sense to allow murderers to escape justice because they claim that they are frightened by LGBTQ people.”

Although psychiatrist Edward J. Kampf originated the term in a 1920 treatise to describe “the pressure of uncontrollable perverse sexual cravings,” the nebulous idea that “gay panic” is a reasonable basis for homicide didn’t make its way into the legal system until 1967. Robert Rodriguez pled “not guilty by reason of insanity” after beating an old man to death in an alley. The 17-year-old testified in court that he feared the deceased was going to molest him.

In recent years, the “panic” defense has been used in a number of murder cases in which the victim was LGBTQ, including Brandon Teena, Gwen Araujo, and Matthew Shepard.

When Joseph Pemberton drowned Jennifer Laude in the toilet bowl of a Manila hotel room in 2014, the 20-year-old testified in court that the reason for her murder was that she “had a penis.” Laude, a 26-year-old transgender women, did not disclose her identity to Pemberton prior to their sexual encounter. The Marine claimed that he was “disgusted” by Laude, playing on the trope of deceptive trans women tricking straight men into intimacy.

“I felt like I was raped by Laude,” Pemberton said during the trial.

The “panic” argument is rarely successful at securing a not guilty verdict for defendants, but it often serves to reduce sentencing. Harris claims that what makes the defense so effective is that it “caters to the prejudices of a jury.” Jurors might identify with the feelings that motivated the actin this case, a disgust toward trans bodiesand be lenient.

The jury found that Pemberton acted out of “passion and obfuscation” and gave him an extremely light sentence for such a grave crime: 6-10 years in prison. With good behavior, Pemberton could be out even sooner.

Nearly every leading legal advocacy group has unequivocally condemned the “panic” defense, including the American Bar Association (ABA) and National LGBT Bar Association. In a 2013 resolution, the ABA urged state lawmakers to pass legislation curtailing the argument’s use in court cases. “The defense has no medical or psychological basis,” the group claimed at the time.

State laws, though, have yet to catch up with other advances in LGBTQ rights over the past few decades. Forty-eight states still allow the “gay panic” defense in court, and numerous legislative efforts to lower that number have stalled in recent years.

New Jersey and Pennsylvania have struggled to pass laws banning the legal argument, while a legislative push in the District of Columbia also stalled.

A Vice article published in June cited issues of bureaucratic inertia as standing in the way of sweeping reform. “Gay panic” bills tend to die in committee or be stonewalled by former public defenders who now hold seats in the legislature. But D’Arcy Kemnitz, executive director of the National LGBT Bar Association, says the real problem is that there’s a “lack of knowledge and understanding” around the issue.

“Most people still do not know that these defenses even exist,” Kemnitz tells INTO in an email. “The biggest hurdle in solving any problem is making the public aware that there is one.”

But Christy Mallory, the state and local policy director for UCLA’s Williams Institute, says that bills like the one passed in Illinois can help make the difference. If this is a “relatively new issue” for state legislatures, SB 1761 can help put the “panic” defense on the radar for other states. After New Mexico banned conversion therapy earlier this year, three more statesConnecticut, Rhode Island, and Nevadaquickly followed suit.

“Only a handful of states have even considered banning the defense legislatively,” Mallory tells INTO, “but I expect that several more states will follow California’s and Illinois’ lead over the next few years.”

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