The “gay panic” defense for murder could be on its way out

In all but three U.S. states, anyone charged with murder can claim in court that they should be held less accountable for their actions because of their victim’s sexual orientation or gender identity. It’s a defense known as the gay or trans “panic” defense.

But two Massachusetts Democrats think it’s about time to change that. While Congress can’t interfere with criminal state law, the lawmakers introduced a bill that would ban the panic defense in federal courts. They’re hoping the bill can serve as a catalyst for states to finally move to outlaw the defense as well. Since the bill's introduction, Pennsylvania has already introduced similar legislation in its state Senate.

“Our legislation would only make an effect on the federal level,” Massachusetts Rep. Joe Kennedy told VICE News. He introduced the bill alongside Massachusetts Sen. Edward Markey. “A lot of these crimes are going to take place at the state level. So it’s critically important that other states update their policies.”

California, Illinois, and Rhode Island have already outlawed using the LGBT panic defense in courtrooms, but in all 47 other states, the defense allows perpetrators of violent crimes to blame the victim’s sexual orientation or gender identity on “their loss of self-control and subsequent assault of an LGBT individual,” according to the National LGBT Bar Association, an organization of lawyers, judges, and other legal professionals that works to promote LGBT rights.

In 2008, for example, Brandon McInerney shot and killed his 15-year-old classmate, Larry King, who occasionally wore makeup and high heels, at their school in Oxnard, California. McInerney allegedly teased King for weeks and vowed “to get a gun and shoot him,” according to the LA Times.

So when his trial started, McInerney claimed that King’s behavior made him feel “threatened” and invoked the LGBTQ panic defense. As a result, he accepted a guilty plea in exchange for 21 years in prison. The case could have landed him behind bars for life, but instead, he'll get out when he’s 38 years old.

Even more recently, a man beat a transgender woman to death in 2016 and received just 12 years in prison for manslaughter after claiming the discovery that she was transgender launched him into a “blind fury.”

“Sexual orientation or gender identity cannot ever excuse violence, and our courtrooms should not be used as chambers of hate,” Markey said in a press release. In fact, the defense could be evidence of a hate crime, according to Kennedy.

These cases show a court system that places LGBT lives lower than their straight peers, says Anthony Michael Kreis, a law professor at the Chicago-Kent College of Law. He helped write the Illinois law that bans the LGBT panic defense.

“This needs to be one point of conversation in a broader conversation about how LGBT people are treated in the criminal justice system more broadly,” Kreis told VICE News. “It's easy to say that these things don't happen all that often, but that's missing the point here.”

Not all politicians agree, though. In Rhode Island, two representatives voted against the bill that blocked use of the gay panic defense. During the House floor discussion in May, Republican State Rep. Justin Price said he was concerned about withholding from jurors “all the information as far as what happened during an altercation,” according to the Providence Journal. “I don’t think that they [can] make a sound decision.”

Regardless of whether states have banned the LGBT panic defense, it’s up to judges to admit evidence, according to D’Arcy Kemnitz, the executive director of the National LGBT Bar Association. The new bill just states that defendants wouldn’t be able to use someone’s gender or sexuality as an excuse to murder them.

“The problem is that when somebody has been attacked or even murdered by virtue of being LGBT or perceived to be LGBT, that does not in any way mitigate the damage that that perpetrator has or has not done,” Kemnitz told VICE News on Thursday. “But it works in the jury member's mind that, hey, maybe that person wasn't as valuable.”

Kennedy isn’t sure how much support the bill will get from his Republican peers. He said no Republicans have come out with any issues against the bill so far, but they haven’t come out in support either.

But if the California, Illinois, and Rhode Island votes are any indication, they aren’t looking at a tough fight. Only nine state senators and 15 assemblymen voted against the California bill. Illinois passed it unanimously, and in Rhode Island in May, just two representatives voted against the bill.

Whether the bill gets the support it needs to pass through the House and Senate, activists see the bill as a success for even reaching this point.

“In any civil rights movement, or in any movement that is a social movement that is trying to enact legal change and a civil rights cultural change, you're always going to have different types of shifts in momentum,” Kreis told VICE News. “Then at some point you have a critical mass where the idea is no longer just emerging, but it's mainstream and it has currency. I think we're approaching that now.”

Cover image: Two men hold hands in Leeds, on Tuesday March 28, 2017. (Press Association via AP Images)