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In most of the states nationwide LGBTQ+ panic defense is still legal, recent report shows

The LGBTQ+ panic defense is when a defendant claims that the victim’s sexual orientation or gender identity/expression justifies their violent behavior.

Former Virginia Tech football player Isimemen Etute was found not guilty of second-degree murder in the killing of Jerry Smith, a gay man whose Tinder profile Etute initially mistook for a woman, in May 2022.

People online argued that Etute appeared to have employed the homosexual or trans panic defense, which is a legal defense that alleges a victim’s sexual orientation or gender identity/expression prompted a violent response from a defendant.

In response, a widely shared tweet asserts that “the gay/trans panic defense is not prohibited in the vast majority of states.”

Yes, the gay and trans panic defense is still legal in a majority of states.

 

WHAT WE FOUND

The gay and trans panic legal defense is a legal strategy that asks a jury to determine that a victim’s sexual orientation or gender identity/expression is responsible for a defendant’s violent reaction, including murder, according to the LGBTQ+ Bar, an association of legal professionals and organizations advocating for LGBTQ+ justice. The LGBTQ+ Bar calls this the “LGBTQ+ panic” defense, which includes violence against LGBTQ+ individuals who do not identify as homosexual or transgender.

According to a 2021 report by the UCLA School of Legislation’s Williams Institute, which conducts research on sexual orientation and gender identity law and public policy, no state recognizes the LGBTQ+ panic defense as a stand-alone defense. According to the Williams Institute research and the American Bar Association (ABA), the LGBTQ+ panic defense is utilized to strengthen the defendant’s defense claim.

Three defenses are coupled with the LGBTQ+ panic defense:

The defense of insanity or reduced capacity asserts that the defendant’s “panic” was caused by the victim’s LGBTQ+ identification.

The provocation defense asserts that the victim’s offer of a “non-violent sexual advance” motivated the defendant to kill them.

Self-defense: asserts that the victim must have intended to hurt the defendant due to their LGBTQ+ status.

The American Bar Association published a unanimous decision in 2013 urging governments to outlaw the use of such defenses. According to the non-profit Movement Advancement Project, 15 states and the District of Columbia have since officially barred the use of this defense (MAP). It is not prohibited in 35 states and five territories, nor is it prohibited on the federal level. 57% of the LGBTQ+ population resides in states where the defense is not prohibited, according to MAP.

W. Carsten Andresen, a professor of criminal justice at St. Edward’s University in Texas, collected and analyzed 99 instances involving 101 defendants who employed an LGBTQ+ panic legal defense in the United States between 2000 and 2019.

According to the research conducted by Andresen, 42 of these defendants presented provocation defenses and 59 raised self-defense justifications. None of the accused invoked the defenses of insanity or impaired competence.

Only one of the defendants who raised a provocation defense and five of the defendants who raised self-defense arguments were acquitted when using the LGBTQ+ panic defense. Instead, Andresen discovered that the objective of such defenses was frequently to lessen the gravity of their charges.

Andresen discovered that 30 of the 101 defendants had their charges reduced, and 12 of the 93 defendants facing murder charges were convicted of manslaughter instead.

Andresen said that he intended to do a future examination of the cases in which charges were reduced to determine the role of the LGBTQ+ panic defense in each case.

Defendants do not inform the courtroom that they are using an LGBTQ+ panic defense, and they frequently attempt to conceal the fact that they are.

In an interview with VERIFY, Andresen asserted, “They will be exceedingly discreet about it.” “Defense attorneys will not come right out and say, ‘Hey, I’m going to utilize race or ethnicity, sexism, or homophobia or transphobia'”

And while a defense attorney may occasionally make an overt connection between the victim’s LGBTQ+ identify and the defendant’s murder, the defense may instead focus on how the victim’s identity influenced the defendant’s mental condition as if it were unrelated to the defendant’s violent response.

Ashley Korslien, an anchor and reporter for VERIFY’s sister station KGW, said, “A defense counsel may employ subtext in their vocabulary and how they represent the victim or why their client, the criminal, killed the victim.”

The six-part audio series “Should Be Alive” produced by Korslien analyzes the 2019 murder of transgender teenager Nikki Kuhnhausen in Vancouver, Washington. David Bogdanov was charged with the killing of Kuhnhausen and claimed the trans panic defense at his trial. Bogdanov was sentenced to 19.5 years in prison for second-degree murder and malicious harassment after his defense failed.

The murder of Kuhnhausen pushed Washington state to prohibit LGBTQ+ panic defenses. Due to the fact that the statute had not yet taken effect at the time of the murder, such a defense was nonetheless admissible in court. Similar circumstances occurred in Virginia, when the Isimemen Etute case was tried.

The Nikki Kuhnhausen Act in Washington states that a defendant’s mental competence is not affected by a victim’s sexual orientation or gender identity, and that a person is not justified in using force against another based on a victim’s sexual orientation or gender identity.

The law does not specify what courts must do to prevent an LGBTQ+ panic defense from being used.

Andresen stated that many of the bans in other states operate similarly to Washington’s, where the state makes it clear to the judge and the jury that certain justifications are not permitted, or where the state prohibits the defense from using the victim’s sexual orientation or gender identity to attack their character. The law prohibiting LGBTQ+ panic defenses in Colorado is an example of the latter type of legislation, which prohibits the use of evidence to attack the victim’s character based on their LGBTQ+ status.

“By proclaiming, ‘We see this to be an issue,’ the state is expressing its ideals. And we don’t agree with it, we’d like it to stop,'” Andresen said.

Given the frequently indirect and complex character of LGBTQ+ panic responses, Korslien asserts that not everyone will agree on what constitutes one.

This is the most complicated aspect of the situation, Korslien stated. “Sometimes it depends on whom you ask; a defense attorney, a judge, and a prosecutor may all have different opinions on whether or not a defendant was technically invoking the panic defense.”

Andresen and a Washington state prosecutor stated that these prohibitions are often applied when the prosecution identifies a panic defense and the judge assesses if the argument or evidence constitutes such a defense.

Even in areas where there are no laws prohibiting the LGBTQ+ panic defense, prosecutors can nevertheless attempt to combat it by arguing to the jury that the information offered is homophobic or transphobic and does not justify the defendant’s actions. Andresen said.

However, because these laws rely on the discretion of persons, particularly the prosecutor and the court, it is feasible for an LGBTQ+ panic defense to be used in states where it is prohibited. Andresen stated that, ban or no ban, prosecutors who are unfamiliar with LGBTQ+ preconceptions, prejudices, and tropes may be ill-equipped to effectively counter these arguments.

“Legal education and awareness of LGBTQI+ victims is required,” Andresen stated in a press release for his panic defenses study. “Prosecutors do not always know how to reply to clichés and generalizations. Simply put, the blind spots within the criminal justice system make it more difficult for some victims to obtain justice.”

Andresen stated that regardless of the efficacy of LGBTQ+ panic defenses in particular cases, the mere fact that they can be used to explain violent crimes establishes a dangerous precedent since it normalizes violent responses to the LGBTQ+ identities of others.

He stated, “We don’t want to give that message to society.”

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