A pair of Massachusetts Democrats have introduced legislation to ban the use of “gay panic” defenses used to justify violence against LGBTQ victims in court.
Sponsored by Rep. Joseph Kennedy III in the U.S. House of Representatives and Sen. Edward Markey in the Senate, the Gay & Trans Panic Defense Prohibition Act would prohibit defendants from being able to claim temporary insanity for murdering an LGBTQ person they say made sexual advances on them.
The defense was prominently used after Russell Henderson and Aaron McKinney beat, tortured, and murdered Matthew Shepard in 1998 on the pretense of giving him a ride home from the Fireside Lounge in Laramie, WY.
Despite tying Shepard to a fence and pistol-whipping him, the men claimed in court they never intended to kill Shepard. McKinney’s attorney said he was driven to “a moment of insanity” when the victim, then just 21 years old, attempted to make sexual advances on him, but the claim didn’t work. After being found guilty of first-degree homicide, the defendants received two consecutive life sentences.
In a statement, Sen. Markey argued that a victim’s LGBTQ identity “cannot ever excuse violence.”
“[O]ur courtrooms should not be used as chambers of hate,” he claimed. “Gay and trans panic legal defenses reflect an irrational fear and bigotry toward the LGBTQ community and corrode the legitimacy of federal prosecutions. These defenses must be prohibited to ensure that all Americans are treated with dignity and humanity in our justice system.”
Rep. Kennedy added that these incidents should be referred to by what they are: hate crimes.
“Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it is a hate crime,” the third-term Congressman and grandson to the late Robert Kennedy said in a statement. “Legal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual, and transgender neighbors should never have existed in the first place.”
Their bill would also mandate that the U.S. Attorney General’s office track anti-LGBTQ crimes prosecuted in federal court, as the Washington Blade first reported.
But the proposal does have some limitations.
The Gay & Trans Panic Defense Prohibition Act does not apply to state courts, just federal trials. It also leaves room for an exemption for attorneys to “admit evidence, in accordance with the Federal Rules of Evidence, of prior trauma to the defendant for the purpose of excusing or justifying the conduct of the defendant or mitigating the severity of an offense.”
Even if Markey and Kennedy’s bill passes both the Republican-controlled House and Senate, panic defenses remain legal in 48 states–all but California and Illinois. Rhode Island may be the next state after legislation was introduced earlier this year.
The American Bar Association has condemned these arguments as “remnants of a bygone era” when anti-LGBTQ discrimination and bigotry was “the norm.” In a 2013 resolution, the group concluded that panic defenses “have no place in either our society or justice system and should be legislated out of existence.”
But despite the ABA’s statement, panic defenses remain surprisingly common–and frequently effective.
Earlier this year James Miller received a sentence of just six months in jail after murdering his neighbor, 32-year-old Daniel Spencer, after he claimed Spencer tried to kiss him. The extremely light sentence from a Texas court included 10 years probation, 100 hours of community service, and a fine of $11,000.
Meanwhile, James Dixon was sentenced to just 12 years behind bars in 2016 after killing Islan Nettles — a transgender woman he alleged “flirted” with him.
Since gay panic defenses first appeared in U.S. courts in the 1960s, The Williams Institute claims that defendants in one-half of states have used the panic defense to receive a reduced sentence. In at least one case, the assailant walked free after blaming the victim’s LGBTQ identity.