LGBTQ Panic Defense

In 1920, Edward J. Kempf first used the term “homosexual panic”. Since then, this term and its meanings have evolved into use in the court systems, with “gay panic” being used as a defense for those accused of victimizing, or acting violently towards, a member of the LGBTQ community in some way. This strategic defense utilizes the victim’s sexuality as a reasoning as to why they became violent towards said person. While this is not a free-standing defense, it is used to support and strengthen other legal defenses and tactics.

Perhaps one of the most famous cases is that of Matthew Shepard, a gay man beaten to death at only 21 years old. One of the two accused, Aaron McKinney, argued his assault had began as just a robbery, but a violent reaction was caused when Matthew Shepard made an advance towards him. His girlfriend at the time even claimed the attack had been based on an “anti-gay sentiment” McKinney held, but later withdrew her statement. McKinney was found guilty, but avoided the first-degree murder charge, man

y believe being due to his panic defense plea.  In recent years, Daniel Spencer’s case made headlines after he was stabbed to death by his older neighbor. James Miller’s defense team claimed Spencer’s sexuality was the inciter for the attack, and Miller felt threatened by the advances made by Spencer on that night. Texas is one of 39 states with no laws or regulations against the use of panic defense in violent crimes court trials. James Miller received only 10 years’ probation and six months in jail for stabbing his neighbor to death. Since this case, the jury has denied viewing Spencer as anything but the victim, claiming they “rejected the self defense claim and any aspect of it.” Yet despite this, Miller only received six months behind bars, for a crime against a gay man in one of the most conservative states in the US.

For hundreds of years, stereotypes surrounding the LGBTQ community have existed. Gay men are stereotyped as predatory, sex obsessed, or even pedophiles. These harmful notions become dangerous quickly, putting young men, even teenagers, at risk of violent crimes purely due to their sexuality. Even more so, their murders and assaults can go unpunished when their attacker is facing a jury with similar homophobic beliefs, whether they are willing to address them or not. Living as a LGBT person in America should

not be dangerous. Abuse of these citizens should not be brushed off or swept under the rug. Sexuality being used in court as a defense of a murder is concrete proof of what we all already know: homophobic beliefs and mentalities run deep within the structure of America’s very framework, it’s governments, it’s courts, it’s schools, and it’s public grounds. How are we as a society to grow and improve when we hold such prejudice and hatred for so many of our people?

39 states have no laws against LGBTQ panic defense. 39 out of 50 states refuse to acknowledge the growing issue of oppression and violence against LGBTQ Americans. 39 out of 50 states continue to allow hate crimes against the LGBTQ community with the simple excuse “they were hitting on me.” On top of this, in 29 out of 50 states, LGBTQ Americans are not fully protected from discrimination. In fact, 27 of those states have no protections at all. These 27 states(mostly southern, obviously) are considered high risk areas for those apart of the LGBTQ community. That means over half of the United States is unsafe for a portion of our citizens and residents. How is it that America, a first world nation, once thought to be the greatest in the world, can stand for this? We have so much farther to go in the fight for equality and justice for all.

Panic defense is only one of many legal loopholes for the abuse of LGBT Americans.  In 2020, the FBI reported 16.7% of hate crimes were based on sexual orientation, a rise from previously reported statistics. On top of this, the percentage of hate crimes based on gender identity rose to 2.7% in 2019. This disturbing trend of rising violence should have absolutely no legal loopholes.  No person should ever have to feel unsafe, uncomfortable, or threatened just for existing. b