It's been five years since the American Bar Association called on every state to end the use of the "gay panic" defense. It's been 20 years since the death of Matthew Shepard, and since his killers argued a "gay panic" defense in court, claiming Shepard had made a pass and driven them to murder.
But so far only two states have banned the defense from the courtroom. And in Texas last week, it knotched another win for a murderer.
James Miller admits he murdered his neighbor but claims it was self-defense because the gay man had come on to him. That kind of "gay panic" defense is outlawed in California and Illinois but not Texas, where Daniel Spencer was stabbed to death.
The jury went easy on Miller last week when it issued a sentence of 10 years probation. That means Miller won't go to prison (he faced up to 10 years) and instead will spend six months in the local jail before heading back to his East Austin home, according to the Austin American-Statesman.
The fact that Miller killed Spencer in 2015 by stabbing him twice in the back was never in dispute. But Miller claims Spencer came on to him, then got angry after being turned down. Miller's lawyers argued that although there was no physical altercation, he felt in danger because at age 66 he was older and shorter, so he killed the 32-year-old gay man in his own home.
Equality Texas posted an outraged statement to Facebook after the sentencing.
"The story is all too familiar," the statement read. "The perpetrator of the violence claims that his victim made sexual advances and so he stabbed him. Twice."
The group called on lawmakers to outlaw the panic defense.
"In 48 states, including Texas, defendants can claim that violence is justified because the victim was gay or transgender. The defense is premised on the idea that a straight, cis man would justifiably be so enraged by a gay or transgender person making a pass at him that attacking or even killing that person is excusable. How is it possible in 2018 that killing a gay or transgender person carries a lesser sentence? The Texas legislature should act: 'gay panic' and 'trans panic' are not a defense for violence."
The American Bar Association calls these defenses "surprisingly long-lived historical artifacts" of a time when hatred of LGBT people was widespread. The defense allows the jury to consider the victim's sexual orientation or gender identity as possibly the cause of violence in their killer. It could legitimately trigger temporary insanity, or a need to defend one's self. "These defenses enshrine in the law the notion that LGBT lives are worth less than others," wrote the ABA.
The defense is not uncommon. The ABA in its 2013 condemnation of "gay panic" and "trans panic" defenses, listed numerous infamous cases of its use.
"Jorge Steven Lopez-Mercado, age 19, was decapitated, dismembered and burned for being openly gay, but according to the police investigator on the case, 'people who live this lifestyle need to be aware that this will happen.' When Matthew Shepard, age 21, made a pass at two men in a gay bar, he should have expected to be beaten, pistol-whipped, tied to a fence, and left to die. When Emile Bernard was stabbed, beaten and blinded after coming on to a hitchhiker, his assailant claimed he could not be guilty since the victim 'was asking for trouble' by making sexual advances. If Angie Zapata, age 18, hadn't initially 'hidden' that she had male anatomy, her attacker would never have bludgeoned her to death with a fire extinguisher. And when a fellow student shot Larry King, age 15, execution-style in front of their teacher and classmates, his actions were understandable because Larry wore dresses and heels, and said 'Love you, baby!' to him the day before. These are actual defenses, offered by real defendants, in United States courts of law that have succeeded in mitigating or excusing real crimes, even today."