What Is The “Gay Panic” Defense For Violent Hate Crimes?

Although LGBTQ rights have taken a hit under the Trump administration, overall they continue to improve year by year, at both the state and federal level. Recently, LGBTQ activists have called on governments to slam the door to the “gay panic” defense shut. This common courtroom strategy asks juries to blame a victim’s sexual orientation or gender identity in order to justify violent crimes — and indeed, often murder. 

The panic defense isn’t an explanation for what happened or why during the commission of a violent crime. It’s an excuse. This is another way that judicial authority — and a jury of our peers — sometimes successfully reduce LGBTQ individuals to second class citizens. 

The panic defense was used during the nationally recognized Matthew Shepard case, which followed the criminal defense of two men who brutally beat and murdered a 21-year-old student in 1998.

LGBTQ advocates are sick and tired of this legal strategy. 

New Jersey Garden State Equality Executive Director Christian Fuscarino said, “Make no mistake, the gay and trans ‘panic’ defense is flat-out legal malpractice and it’s time for New Jersey to outlaw this horrific and discriminatory legal strategy.”

A new bill to ban the “gay panic” defense is scheduled for a vote early next week in the New Jersey state Assembly. Should the bill be signed into law, perpetrators of violent crimes against members of the LGBTQ community would be banned from being granted lesser charges by arguing they became upset in the heat of the moment when learning of a person’s sexual orientation or gender identity.

Dean Dafis is a gay Maplewood committee member and supporter of the new bill. “It’s affirmation that we matter,” Dafis said. “That we will not be erased because when the violence against you is legitimized and excused, then you are erased as a victim and what’s happened to you — it’s like it doesn’t matter to anyone.”

Eight other states have already banned the panic defense.

The defense is usually used to complement one of several other legal strategies: insanity, diminished capacity, provocation, or self-defense. All of these defenses are outrageously illogical and only serve to do additional harm to the LGBTQ community, which is already struggling with increased violent crimes during the dogmatic years of the Trump presidency.

If the New Jersey state assembly approves the bill, it will be forwarded to the Senate for another vote. Should it pass through the Senate successfully, Governor Phil Murphy will hopefully then sign it into law.