The Demise of the Gay (and Trans) Panic Defense

On September 27, 2014, California Governor Jerry Brown adopted Assembly Bill No. 2501 (“A.B. 2501”), which amended California Penal Code § 192 in a manner that effectively bans the gay (trans) panic defense.  Section 192 defines voluntary manslaughter as “the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion,” but A.B. 2501 redefined this crime by adding the following language:

“For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.”

High-profile cases in the United States in which the gay (trans) panic defense was invoked include:

• Scott Amedure, killed by friend Jonathan Schmitz after Amedure confessed to having a “crush” on Schmitz while guests on the The Jenny Jones Show in 1995;
• Matthew Shepard, infamously murdered in 1998 by two men who claimed to have become enraged after an alleged proposition by Shepard;
• Larry King, an eighth-grader described as “effeminate” who was shot to death by classmate Brandon McInerney in 2008 after alleged unwanted romantic advances by King;
• Marco McMillian, an openly gay Clarksdale, Mississippi mayoral candidate murdered by Lawrence Reed after he claimed McMillian tried to rape him; and
• Islan Nettles, a transgender woman beaten to death in 2013 on a Harlem, New York street by James Dixon. Dixon reportedly flirted with Nettles and lashed out after he discovered Nettles was transgender.

As the rate of violence against the LGBTQ community rises, actions like those taken by California and its legislators are steps in the right direction to protect vulnerable citizens, and it appears other jurisdictions will follow California’s lead.

In August 2017, Illinois Governor Bruce Rauner signed legislation amending 720 ILCS 5/9-1 to declare, “an action that does not otherwise mitigate first degree murder cannot qualify as a mitigating factor for first degree murder because of the discovery, knowledge, or disclosure of the victim’s sexual orientation as defined in Section 1-103 of the Illinois Human Rights Act.”  Advocates may use Illinois’ elimination of the gay (trans) panic defense, which took effect January 1, 2018, as a catalyst for change in other jurisdictions such as Minnesota, Michigan, and Texas.

The American Bar Association (ABA) also has taken a formal stand, voting in August 2013 to restrict invocation of the gay (trans) panic defense.  An official ABA resolution urged “federal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.”

As the issue of the gay (trans) panic defense evolves, Westlaw will continue to publish opinion and commentary.

For additional information on topics similar to the one in this article, the following search may be run on Thomson Reuters Westlaw:

adv: gay trans transgender /2 panic /2 defense (139)

Search Type: Boolean T&C

Content: Secondary Sources Library

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