“Gay panic,” or perceiving an unwanted sexual overture from someone of the same sex or from a transgender person, has been used as a criminal defense for acts of violence going back to at least the 1950s in the United States. While it rarely results in acquittal, it may be a factor in many relatively light sentences given to those convicted of killing L.G.B.T. people, such as the 12-year manslaughter sentence given to a New York man who beat a transgender woman to death in 2013.
Last month Senator Ed Markey and Representative Joe Kennedy III, both Democratic members of Congress from Massachusetts, introduced the Gay & Trans Panic Defense Prohibition Act, which would prohibit the use of the gay panic defense in federal court (although it would permit the evidence of “prior trauma” to justify a defendant’s actions). “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,” Representative Kennedy told The Washington Blade.
Prosecutions for such attacks are usually handled at the state level, but a federal law would send a strong message that fear of, or discomfort with, any group of people is not a license for violent behavior. Currently, the gay panic defense has been banned only by California, Rhode Island and Illinois, but we hope that other states follow their lead. Perhaps as significant, the federal bill would also require the U.S. attorney general to produce an annual report on prosecutions in federal court for crimes committed against L.G.B.T. people “that were motivated by the victim’s gender, gender identity or expression, or sexual orientation.” This would be valuable information for determining the scope of anti-L.G.B.T. violence.