Uncategorized — 25 November 2019
What Is The Legal Definition Of The “Gay Panic” Defense?

The New Jersey State Assembly is about to vote on whether or not the “gay panic” courtroom defense of violent criminals should be made illegal. Since so few people seem to be aware that the defense exists at all, we thought it might be a good time to shed some light. This defense has been used by those who commit violent crimes against the LGBTQ community. Most notoriously, it was used to defend the two men who were convicted of beating and murdering 21-year-old college student Matthew Shepard in 1998.

Two variations of the panic defense exist. The “gay panic” defense is recognized when the victim is homosexual. The “LGBTQ+ panic” defense is recognized when the victim falls into a different category than homosexual, such as transgender.

The gay panic defense is often used to supplement other defenses that rely on spur-of-the-moment judgement on the part of an individual.

One such defense is insanity (or sometimes diminished capacity). This occurs when the defendant says the victim made some kind of a “come on” or offer of physical affection. The alleged proposition is supposed to have caused the defendant to quite literally “panic” because of “gay panic disorder,” a debunked psychiatric term no longer used in the field of medicine.

Provocation is another such defense. The victim once again makes some sort of proposition to the defendant, which compels the defendant to become violent. This defense takes advantage of lingering public sentiment that somehow being gay or transgender is inherently wrong or immoral. This is made more transparent by the fact that this behavior isn’t sufficiently provocative when coming from a member of the opposite sex to be used as a legal basis for defense.

Self-defense is one of the more illogical defenses sometimes used in court. The defendant will imply that somehow the victim’s sexual orientation was an imminent source of danger. The defendant, therefore, will have had the right to self-defense when seriously injuring or killing the victim.

Most of these legal defenses reinforce the idea that LGBTQ+ individuals are second class citizens who do not have the same rights and liberties as other Americans. The panic defenses imply that somehow LGBTQ+ citizens are a threat to the safety of others. There is no reasonable evidence to support this, and yet the panic defense has been allowed to pervade our courtrooms for decades.

Eight states have so far enacted laws banning the gay or LGBTQ+ panic defenses in the court of law.

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Dolores Obrien

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