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Democrats Push to Outlaw 'Gay Panic' Defense

Democrats Push To Outlaw 'Gay Panic' Defense

Attacking an LGBT person after they make an unwanted sexual advance is indefensible, opponents say.

Democrats in Congress have filed a bill to outlaw the "gay panic" defense, sometimes used to argue that assailants deserve lighter sentences or even acquittal because they were panicked into committing a violent crime after an LGBT person made an unwanted advance.

The Gay & Trans Panic Defense Prohibition Act, which was introduced by U.S. Rep. Joseph Kennedy III and Sen. Edward Markey, both of Massachusetts, would ban the use of "gay panic" as a legal defense in federal court.

Admitting you've committed an act of violence against someone upon discovering they're LGBT "is not a defense, it is a hate crime," Kennedy told the Washington Blade. "Legal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual, and transgender neighbors should never have existed in the first place." Kennedy is one of Congress's most outspoken advocates for LGBT rights.

The most infamous case in which "gay panic" was used as a defense was the murder of college students Matthew Shepard, who was beaten, robbed, and left to die, tied to a fence by two men who met him in a bar in 1998. The killers, Aaron McKinney and Russell Henderson, argued in court that they suffered "a moment of insanity" when Shepard made a sexual advance toward them.

"Gay and trans panic legal defenses reflect an irrational fear and bigotry toward the LGBTQ community and corrode the legitimacy of federal prosecutions," Markey toldthe Blade. "These defenses must be prohibited to ensure that all Americans are treated with dignity and humanity in our justice system."

If passed, the ban on "gay panic" defenses would only exist in federal courts; in state courts, the practice would still be legal, except in those states that have adopted bans on it.

As of now, using "gay panic" as a defense is banned only in California, Rhode Island, and Illinois. This year in Texas, 69-year-old James Miller, who stabbed his neighbor Daniel Spencer to death on 2015, argued that he killed him in self-defense after Spencer tried to kiss him and then came at him with a glass.

Miller was sentenced for criminally negligent homicide rather than murder or manslaughter, resulting in six months in prison and 10 years' probation. A judge also ordered him to do 100 hours of community service and to pay $11,000 in restitution to Spencer's family.

"These defenses have no place in either our society or justice system and should be legislated out of existence," the American Bar Association wrote in a letter to Markey in April expressing support for the bill. It called "gay panic" and "trans panic" legal defenses "remnants of a by-gone era" of anti-LGBT discrimination.

The Gay & Trans Panic Defense Prohibition Act would still allow courts to admit evidence of prior trauma to the defendant to justify their conduct or mitigate the severity of the offense. It would also obligate the U.S. attorney general to submit to Congress an annual report of federal court prosecutions of hate crimes committed against LGBT people.

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Ariel Sobel