By Alanna Goldstein
Hate crimes against the LGBTQ+ community in the United States continue to be an ongoing problem. Even after the Matthew Shephard and James Byrd Jr. Hate Crimes Prevention Act passed by Congress in 2009, a gap exists specifically for “gay panic defense” and “trans panic defense” hate crime legislation to be passed in both the United States and here in Wisconsin.
While relatively little-known, the “gay panic defense” and “trans panic defense” can have massive impacts on people’s lives. The LGBT Bar Association defines this type of defense as: “a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder. It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses (LGBT Bar Association). These defenses can be invoked in court by the defendant as a reason to stop prosecution of a violent crime. It allows defendants to claim that they were caught off guard by the plaintiff’s either sexual orientation or gender identity which caused the defendant to then either assault, and in some cases murder, the plaintiff. So, for instance, a way that the “panic defense” can be invoked in court is if a defendant claims that they were motivated to protect themselves from sexual advances by a plaintiff because the plaintiff is transgender.
The use of the “gay panic defense” and “trans panic defense” promote a culture of homophobia and transphobia. The “panic defense” presents another’s gender identity and sexual orientation as something to be afraid of and justifies violence against those who fall within the LGBTQ+ community. Additionally, “[t]he gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender non-conformity are mental illnesses… criminal defense attorneys began invoking the gay and trans panic defenses in the 1960s, arguing that an LGBT victim’s unwanted sexual advance caused perpetrators to enter a state of ‘homosexual panic,’ and kill the LGBT victim” (Woods, et al).
The worst impacts of the application of the “gay panic defense” and “trans panic defense” can be seen through murder trial cases. Dr. Warren Carsten Andersen, a professor at St. Edward’s University, tracked 104 uses of the “gay panic defense” in murder trial cases since 1970. Nationally, the use of the “gay panic defense” by “defense attorneys who enter gay panic defenses reduces a defendants’ murder charges by 32% of the time, even though the majority of these homicides involve incredible violence” (Andersen).
Two of these cases Andersen tracked were in Wisconsin. For instance, the “panic defense” has been invoked in Wisconsin in 2001 in State v Bodoh. The defendant claimed “the victim made sexual advances towards the defendant. Soon after, the defendant shot the victim.” In court, the defendant used the “gay panic defense” on the grounds of provocation (Woods, et al.). While murder cases are the most extreme, the “panic defense” is also invoked in assault cases. Thus, it is important that LGBTQ+ people receive state protection against their assailants by removing the ability to invoke the “panic defense” in court.
Wisconsin should follow suit to other states’ actions and ban the “gay panic defense” and “trans panic defense.” Many states have already banned the use of the “panic defense” in court: this includes California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado, and District of Columbia (LGBT Bar Association). California, as the first state to ban the “gay panic defense” and “trans panic defense” provides a strong model of the success of such legislation. In 2013, the passage of Assembly Bill 2501 amended provocation to be unreasonable in the case of “the victim’s gender, gender identity, or sexual orientation” (Lee).
Current Wisconsin state statute allows for defendants to use both the “gay panic defense” and the “trans panic defense” in Wisconsin state court. This memo seeks to recommend a legislative solution through the Wisconsin state government to ban the practice of the “gay panic defense” and “trans panic defense” in Wisconsin.
There is already a potential legislative solution the Wisconsin Legislature should pass in order ban the “gay panic defense” and “trans panic defense.” In 2019, Representative Greta Neubauer, a Democrat from Racine, authored Assembly Bill 436: LRB 2490. The text of the proposed bill is below:
“Section 1. 939.44 (3) of the statutes is created to read:
939.44 (3) Provocation is not adequate under this section if it resulted from the
discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made a romantic or sexual advance without use or threat of force or violence towards the defendant or if the defendant and victim dated or had a romantic or sexual relationship.
Section 2. 939.48 (5m) of the statutes is created to read:
939.48 (5m) A person is not entitled to claim the privilege of self-defense based on the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made a romantic or sexual advance without use or threat of force or violence towards the person or if the person and victim dated or had a romantic or sexual relationship” (Wisconsin Legislature).
This bill provides an expense-free solution to the problem of the “gay panic defense” and “trans panic defense” in Wisconsin state statute. There is no cost to the court system by removing this defense and it will successfully remove the ability for defendants to employ the defense in court, without costing the taxpayer.
Legislative reform is necessary for this change to be accomplished. This is critical especially for the “trans panic defense” as juries are biased against transgender individuals. “A legislative ban would send a clear message to the jury that in the legislature’s eyes, it is not reasonable to get so upset that one uses physical violence against a transgender woman upon dicsovering her biological sex does not match her gender identity. A legislative ban would also ensure that jurors reject trans panic defense arguments far more effectively than a prosecutor’s appeal to the jury’s sense of fairness” (Lee).
By the Wisconsin State Legislature passing Assembly Bill 436: LRB 2490, Wisconsin will have successfully banned the use of the “gay panic defense” and “trans panic defense” in Wisconsin. This will be for the benefit of preventing the non-prosecution of hate crimes of LGBTQ+ people and ensuring instead that LGBTQ+ people receive justice from the court system. By the Legislature removing this language as acceptable within the state court system in Wisconsin, it sends a message of acceptance and support for the LGBTQ+ community.
Andersen, Warren Carsten. “I Track Murder Cases That Use the ‘Gay Panic Defense,’ A Controversial Practice Banned in 9 States.” The Conversation, 29 Jan. 2020, theconversation.com/i-track-murder-cases-that-use-the-gay-panic-defense-a-controversial practice-banned-in-9-states-129973. Accessed 21 Feb. 2021.
LGBT Bar Association. LGBTQ+ “Panic” Defense. 12 Feb. 2021, lgbtbar.org/programs/advocacy/gay-trans-panic-defense/.
Lee, Cynthia. “The Trans Panic Defense Revisited.” American Criminal Law Review, vol. 57, no. 1, 2020, pp. 1401–1497., doi:10.2139/ssrn.3481295.
Perkiss, David Alan. “A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons from the Lawrence King Case.” UCLA Law Review, vol. 778, 2013, pp. 778–824.
Tomei, Jenna, and Robert J. Cramer. “Legal Policies in Conflict: The Gay Panic Defense and Hate Crime Legislation.” Journal of Forensic Psychology Practice, vol. 16, no. 4, 2016, pp. 217–235., doi:10.1080/15228932.2016.1192331.
Wisconsin, Legislature, 2019 Assembly Bill 436. 2019.Woods, Jordan Blair, et al. The Williams Institute, 2016, pp. 1–22, Model Legislation for Eliminating the Gay and Trans Panic Defenses.