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Banning The 'Gay And Trans Panic' Defense From America’s Courtrooms

There are a few notable cases where defendants in murder trials used the legal strategy of blaming the victim's sexual or gender identity — which is no longer legal in some states — to soften their sentences. 

A rainbow flag seen flying at the narch in New York.

As lawmakers around the country are pushing for LGBTQ+ equality, many experts want to see the "gay and trans panic" as a defense to criminal acts barred from America’s courtrooms.

Christy Mallory is the legal director at UCLA’s Williams Institute, an interdisciplinary organization that focuses on the laws and policies surrounding sexual orientation and gender identification. Mallory is one advocate trying to do away with the “antiquated” courtroom defense strategy, which she says helped legitimize violent acts committed by a person who claims they were triggered by their victim's sexual or gender identity.

According to the institute, the defense has been used in more than 25 states by people claiming of self-defense, provocation and insanity.

“The 'gay and trans panic' defenses are arguments that some criminal defendants have raised when being charged with murdering an LGBTQ+ person,” Mallory told Oxygen.com. “These defenses are not free-standing defenses, but rather theories used to support other types of defenses, such as provocation or self-defense.”

Mallory explained that the belief in so-called "gay and trans panic" comes from the idea that there is something “wrong” with LGBTQ+ individuals.

“When defendants raise a 'gay or trans panic' defense, they are arguing that it was reasonable for them to react violently to a person’s LGBTQ+ status or a romantic advance by an LGBTQ+ person,” she continued. “This argument rests on the assumption that there is something wrong with LGBTQ+ people or that they are inherently dangerous.”

A portrait of Christy Mallory

One of the more notable cases that used this defense was the 1954 murder of William T. Simpson. Simpson was a gay flight attendant in Florida who was shot and killed by two men who made a habit of “rolling” gay men — a practice where suspects lure someone and rob them, according to Erie Gay News. Charles Lawrence and Lewis Killen, who frequently targeted gay men on the “lovers lane” highway stretch, admitted to the shooting but claimed they felt unsafe when Simpson made unwanted sexual advances toward them.

Contemporaneous news outlets like the Miami Daily News focused on Simpson’s sexuality, referring to a nearby gay locale as a “pervert colony" and even suggesting that Simpson was involved in “gay drama.”

The biased coverage tainted the trial, resulting in the suspects getting 20-year sentences on charges of manslaughter. As of 2017, both men were living in Florida, according to the Erie outlet.

“Generally speaking, negative portrayals can also perpetuate the belief that violence against LGBTQ+ people is acceptable,” said Mallory. “And that their lives are worth less than those of non-LGBTQ+ people.”

Another notable case surrounded the murder trial of Michigan man Jonathan Tyler Schmitz, who was convicted in 1996 (and then again in 1999, after a successful appeal of his first conviction) for the murder of Scott Amedure, according to the Atlanta Journal-Constitution. The murder made headlines because Schmitz and Amedure, who were friends, had gone on the “Jenny Jones” talk show where — unbeknownst to Schmitz — Amedure was there to confess to a secret crush on Schmitz. (Schmitz was told his secret admirer would be revealed.)

The public revelation perturbed Schmitz, even after the two returned to Michigan. Soon after, Schmitz shot Amedure twice in the chest with a shotgun after finding a sexually explicit note he believed was from the victim.

According to the American Bar Association, the "gay panic" defense helped Schmitz be convicted of the lesser charge of second-degree murder instead of first-degree murder.

Schmitz was released from prison in 2017.

Jonathan Schmitz during a break at his murder trial

“In cases where gay and trans defenses are used, jurors are asked to find that the defendant is not guilty of murder, but rather, a lesser crime with a reduced sentence, like manslaughter,” said Mallory. “Where jurors accept the defense, they are essentially deciding that the defendant’s conduct was at least justified or excusable, and this belief can reflect internal biases and homophobia on the part of jurors.”

Mallory said this is especially the case when the outcome would have been different if the victim was not LGBTQ+.

The "gay and trans panic" defense hasn’t always been successful, however. In the high-profile case of Matthew Shepard, whose grisly 1998 homophobic torture and murder was the cornerstone of the federal Hate Crimes Prevention Act of 2009, killer Aaron McKinney tried and failed to claim that Shepard’s sexuality led to his temporary insanity.

The defense failed McKinney, not because the gay panic defense was inadmissible in Wyoming, but because the killer’s “irresistible impulse” — in this case, allegedly brought on by the victim’s sexual identity — was not a part of the state’s insanity defense construct, according to the American Bar Association.

Matthew Shepard 1

Legal experts at the Williams Institute found that between 1970 and 2020, at least 104 defendants tried using the "gay/trans panic" defense across 35 states.

“LGBTQ+ people continue to face many forms of stigma and discrimination, from employment and housing discrimination to exclusion at schools to increased barriers to getting out of poverty, to violence at the hands of law enforcement,” said Mallory. “When courts allow defendants to raise 'gay and trans panic' defenses, it further stigmatizes LGBTQ+ people."

Despite efforts to ban the defense around the country, “gay panic” arguments are still being used today — such as in the 2018 case of James Miller, who got probation for stabbing his neighbor to death after the neighbor allegedly tried to seduce him. It was also one of the focal points in the murder trial of Isimemen Etute, who was acquitted in May for beating to death a person with whom he'd been intimate believing she was a woman named Angie.

Earlier this year, New Mexico became the 16th state to implement a ban on the "gay/trans panic" defense. Even though 12 other states have introduced legislation promoting such a ban, they have not passed — leaving the rest of America open to the prejudicial defense, according to The National LGBTQ+ Bar Association.

Mallory says the Williams Institute has drafted a model law for states that may potentially want to adopt the ban in the future.

“Many people are unfamiliar with the defenses and the fact that they are still being used in courtrooms across the country today,” said Mallory.

Lawmakers encourage everyone to help push for the ban by contacting local and federal legislators.

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