Get Away With Murder: It’s Legal in 47 States to Use the Gay and Trans Panic Defense

"It’s important that the public believes that if they are the victim of a crime, they will find justice.”

In 2009, a Illinois jury acquitted Joseph Biedermann of first-degree murder. The 29-year-old didn’t deny that he stabbed his neighbor Terrance Hauser 61 times after a night of drinking. Instead he insisted his actions were justified because Hauser, 38, made an unwanted sexual advance.

A year later, Vincent James McGee, 22, was charged with murdering Richard Barrett, 67, in Pearl, Mississippi. Barrett was an ardent white supremacist, but McGee testified he was sent into a panic when Barrett dropped his pants and asked him to perform a sexual act. McGee smashed Barrett in the head with a radio, stabbed him numerous times, and set his body on fire.

The jury convicted him of manslaughter.

Just this year, James Miller, 67, successfully avoided prison time by claiming he killed his friend Daniel Spencer, 37, because Spencer moved “aggressively” toward him after Miller spurned his advances.

“He had height advantage over me, arm length over me, youth over me,” Miller testified. “I felt he was going to hurt me.” The two regularly met up to play music, but after Spencer supposedly leaned in for a kiss, Miller pulled out a knife and stabbed Spencer twice. At trial, prosecutors argued that the idea deadly force was necessary was “ludicrous”—Spencer didn’t even touch Miller—but the jury came back deadlocked. Eventually he was convicted of criminal negligence and given 10 years’ probation.

It’s impossible to know exactly how many times the so-called gay panic defense has been used in the United States, though a 2016 study by the Williams Institute found it in court opinions in roughly half of U.S. states. There have been acquittals, but most commonly it’s resulted in lesser charges or lighter sentences for often gruesome crimes.

Perhaps the famous instance was in 1995, when Jonathan Schmitz, then 24, murdered Scott Amedure, 32, after Amedure admitted he had a crush on Schmitz on The Jenny Jones Show. Charged with first-degree murder, Schmitz was instead found guilty of second-degree murder.

According to the National LGBT Bar Association, the gay panic defense—and the related trans panic defense—“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.”

“Countless Americans have no idea that in 2018 it is still considered a viable courtroom tactic in many places,” D’Arcy Kemnitz, Executive Director of the National LGBT Bar Association, tells NewNowNext. “We believe that as more people become aware of its continuing usage in courtrooms, more individuals will advocate for its end.”

The defense exploits old myths that queer victims somehow brought their fate on themselves. It’s used to draw focus away from the crime and toward the status of the victim. While ugly stereotypes about other minorities obviously persist, it’s rare to find a defense attorney try to justify a violent act because of the victim’s race, gender, or religion.

“At the heart of gay and trans panic defenses is the idea that individuals who do not conform to gender norms are abnormal and should be feared,” Anthony Michael Kreis, who helped draft Illinois’ ban on the defense, wrote in a Chicago Sun-Times op-ed. “They reinforce outdated notions that LGBT persons are mentally ill and predatory. They endorse the proposition that violence against LGBT people is excusable.”

And they work: After Brandon McInerney, then 14, shot and killed 15-year-old classmate Larry King in 2008, he claimed King pestered him and asked him to be his valentine. His trial resulted in a hung jury before McInerney eventually pleaded guilty to second-degree murder, voluntary manslaughter, and use of a gun.

Lawrence K. Ho/Los Angeles Times via Getty
A 2006-07 yearbook photo of Brandon McInerney, who shot and killed Larry King.

To date, only Illinois, Rhode Island, and California have prohibited panic defenses. Pennsylvania, Washington, New Jersey, the District of Columbia, and a handful of other states are looking at statewide bans: Earlier this year, Governor Andrew Cuomo proposed a ban in New York, citing the case of Islan Nettles, 21, who was beaten to death by James Dixon, 25, who flirted with her. (Dixon pleaded guilty to manslaughter and was sentenced to 12 years in prison.) And in July, the Gay and Trans Panic Defense Prohibition Act was introduced in both houses of Congress.

“There is absolutely no justification for the use of ’panic defenses,'” said Assemblywoman Susan Bonilla, who authored California’s ban. “Clearly this tactic has been utilized by defendants, unjustly targeting members of the LGBT community based on damaging stereotypes.”

It was the grisly 2002 murder of trans woman Gwen Araujo, 17, that fueled California’s law. Her killers claimed they were enraged when, after having sex with her, they learned Araujo was transgender. They insisted her failure to disclose her biological gender was tantamount to a deception—a sexual violation “so deep it’s almost primal.’”

After their first trial resulted in a deadlock, two defendants were convicted of second-degree murder, while a third pleaded no contest to voluntary manslaughter. In all cases, the jury refused to add hate-crime charges to their convictions.

Mario Tama/Getty
Vigil for Islan Nettles in New York City.

It took more than a decade to pass California’s ban, which mandates that a defendant’s discomfort with, surprise at, or fear of a victim’s sexual orientation or gender identity cannot be used as a legal defense to justify a criminal act.

“It’s important that the public believes that if they are the victim of a crime, they will find justice,” says Richard Saenz, Criminal Justice Strategist with Lambda Legal.

But even when a panic defense isn’t directly utilized, attorneys can invoke ugly stereotypes about LGBTQ people to sway juries. “It often shows up in subtle or implicit ways,” explains Janson Wu, Executive Director of GLBTQ Legal Advocates & Defenders (GLAD). “Through innuendo, the type of story they’re telling.”

Judges have to be educated to use their discretion to prevent prejudicial testimony, Wu explains. “You can ask for something to be stricken from the record but a jury can’t ‘unhear’ something. It’s important to send a clear message to judges and defense attorneys that this is not acceptable.”

It’s even more important to dismantle the gay panic defense now, as hate crimes are on the rise and the Trump administration is rolling back protections for sexual minorities.

“At the end of the day this is about what the law says about our community,” adds Wu. “If gay and trans panic defenses are allowed to continue, that says there’s something distasteful or offensive about us.”

Dan Avery is a writer-editor who focuses on culture, breaking news and LGBT rights. His work has appeared in Newsweek, The New York Times, Time Out New York, The Advocate and elsewhere.