Banning The “Gay Panic Defense”

Last year, the American Bar Association House of Delegates passed a controversial resolution calling on states to ban the so-called gay panic defense. The defense arises (when it does arise, which is rarely), in cases of a heterosexual accused of an assault on a gay individual when the defense attorney argues that his client was so shocked and terrified by a homosexual advance of a romantic or sexual nature that he was overcome with disgust, anger and fear, and was launched into a psychotic state that compelled violence. Many judges refuse to allow it, because there is no accepted scientific evidence that “gay panic” exists as a legitimate prelude to temporary insanity.

The ABA resolved:

 That the American Bar Association urges federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which 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.

Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendant s based upon sexual orientation or gender identity; and

(b) Specifying that neither a non – violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, o r to mitigate the severity of any non – capital crime.

It should be no surprise that California was the first state to follow this plan, with Gov. Jerry Brown signing an anti-gay panic defense bill into law in September. Now New Jersey has a similar law under consideration.

Does the gay panic defense seem especially ripe for abuse, exploiting homophobic fears among jury members to allow violence against gay victims to go unpunished? Absolutely.

Does the ABA resolution and both California’s law and New Jersey’s proposed law smack of political and cultural warfare interfering with a defendant’s right to a zealous and vigorous defense?


Evidence must first be admissible, then it is up to the jury to determine its weight. A judge can and should determine if a sufficient foundation for proffered evidence makes it proper to be presented to the jury, and appeals courts exist to decide if such a determination prejudices a criminal defendant.

It is not the place of the ABA to demand preemptive gag orders on evidence which may be relevant in some cases, irrelevant in others, and unprovable or inherently unbelievable or absurd in still more. Similarly, it is not appropriate for a state legislature to remove possible defenses to criminal charges. That is the trial judge’s job, and the judge in a particular case is the one most qualified to do it.  Then it is a jury ‘s job to decide if the defense is garbage.

I completely agree that the gay panic defense is usually and perhaps always garbage, a Hail Mary toss to the jury members who might “understand” how a man would lose it upon discovering, for example, that he had been fraudulently enticed into bed by a he pretending to he a she. But a criminal defendant has a right to a vigorous, zealous defense, and such defenses often get thin, desperate and silly, all of which are ethically acceptable as long as the lawyer has “a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” That means that a lawyer should be able to argue that this almost always ridiculous defense has validity and legitimacy in a particular case on the facts. The quote was from Rule 3.1 of the ethics rules, and it was composed by the American Bar Association to allow all but the most indefensible defenses imaginable: almost nobody gets bar discipline for violating Rule 3.1. The American Bar Association wrote that rule, and they should stick to it, not devise feel-good exceptions that play to its liberal Democrat membership.

Now, it appears, the ABA is just playing political favorites. All other thugs, bullies, anti-social jerks and killers can get a creative, last-ditch defense like the “Twinkie defense” or “Affluenza,” but since gay and trans victims are special, those who abuse them are especially bad, so the just thing is to tie their lawyers’ hands.

The Constitution protects all defendants, and those accused of harming LGTB victims should be protected no less than the others. A pro-gay bias is still a bias, and the ABA, California, and any other state that prohibits this rarely used defense that is virtually always fanciful but might be valid in some case, somewhere,  are catering to a politically powerful interest group. Let the judge and the jury decide.


Pointer: Fred

Sources: LGTB Bar, N.J.Com, ABA Journal

29 thoughts on “Banning The “Gay Panic Defense”

  1. My sick mind is crunching through scenarios. I foresee a 17 year old boy assaulting a Catholic priest with no witnesses. The youth shall be an attractive teenage heart-throb worthy of social media fame, just frail and innocent enough to play the victim, yet sufficiently fit and toned to be a believable aggressor. The Catholic priest’s sexuality shall be ambiguous, with the potential to be outed during the ordeal. No witnesses. No evidence beyond an assaulted priest.

    Time to start writing the script!

  2. Yeah…. If they want to try that… Good luck.

    That said, there are instances where simply making something up in court not only gets traction, but gets results. For instance, as outlined in Elizabeth Sheehy’s “book” Defending Battered Women on Trial, in the 1995 case of Jamie Gladue, page 170:

    “Kay was thus a survivor of what Dr. Catania called “multiple serialized battering,” a term that she coined to capture the experiences of teen mothers, ‘where there are short term relationships, and … within that relationship there is abuse occurring.’ Dr. Catania testified: “A person exposed to multiple abuse and violence by different men would be more serious and more debilitating [because] if … more than one person [is] abusing, each abuse constitutes a confirmation or a reinforcement of your value as a person, that each guy tells you, you are no good, you’re not worth anything.” Kay, she said, “definitely” had the experience of multiple, serialized battering.”

    The argument put forward was that although Jamie’s current boyfriend had never actually beaten her, her previous boyfriends had, and therefore she was a battered woman, and when she caught her boyfriend cheating on her with her sister, it was understandable that she would feel trapped in the relationship even as he was stacking her belongings on the curb, and therefore justified in stabbing him in the heart with a pair of scissors.

    This idea of a “Serially Battered Woman” was never before seen in court, has never since been seen in court, is not backed up by any evidence, and was never documented and presented for peer review.

    There has to be a point in a system based on precedent, where coming up with unscientific science bought and paid for from unethical professionals that not only results in a miscarriage of justice in the current case, but possibly in future cases must be seen as unethical. I guess my question is where that point is.

    • Which of course is the point—it’s a moving target, and if you really don’t want innocent people convicted more than you want guilty one’s punished, then the system needs a wide margin of error—wide enough to allow some outrageous defenses that depend on dumb juries.

      • But I have this thing… Where I realize that there are people on those juries, and I’m misanthropic enough to believe that the average person is an intellectually stunted rube. And those rubes have a hard enough job without lawyers literally making shit up on the spot and presenting it as solid science.

        It scares me. I’m not sure I disagree with you. But it scares me.

        • I have been unlucky enough to have been called for jury duty four times now. My second time in I got popped for grand jury so I was seated immediately. The other three times I went through a number of rounds of voir dire. I indeed listened to several “intellectually stunted rubes” during the process. After going through it I have some more faith in the process. The most obvious were pulled by the judge based on the judge’s questions before the prosecution or defense even got a question in. When I saw who was seated at the end of the process, they indeed were people fully capable of following the process and wouldn’t fall for ridiculous farces thrown up by a defense attorney.

  3. That’s a new one. Gay panic is something I have never encountered as an adult, although I can see someone being shocked and angry at a “Crying Game” encounter where he’s been played for a fool or not told the whole truth. Despite my mocking and occasional outright blunt insulting, I don’t believe the vast majority of gay people pursue encounters if told to get lost, though I suppose they must have their share of individuals with uncontrollable sexual desire or who refuse to take no for an answer.

    What I did encounter when I was younger was others faking homosexual advances as a form of harassment, because torturing one other is what kids do, and in the 80s implications that you were gay and therefore a spreader of a deadly disease was the deepest insult of all (I know, think like a 14yo). Violence sometimes resulted from that, partly to silence the harasser, partly to stop others from picking up on the harassment. What the gay panic defense is is essentially this mentality brought forward into adulthood.

    That said, legally, limiting the defenses a criminal defendant can present is generally a bad idea, and limiting them based on political biases or currents is a very, very bad idea. I think police officers the world over would love to see any defense based on a black murderer’s innate fear of the police quashed as unsupported bullshit. That wouldn’t have passed last year, but in the wake of the recent murders it could be rammed through. Any takers? Didn’t think so, because taking away a defense violates every Constitutional principle. If cops, charged with keeping order, aren’t the ultimate special victims, then why are gays?

  4. First of all, this gave me a laugh (it’s not a laughing subject, but still…) both rueful, since gay organizations fought so hard to stop the use of the defense both in court and in the mind of the general public, and ironic, considering that “California” seems to not be able to do anything right in your eyes. [I knew you weren’t going to go for Gov. Brown’s signing of the affirmative consent law for investigating sexual assault on college campuses, and I couldn’t agree more.]

    Of course, I can’t fault your conclusions-in-law. (Ten legislators opposed the bill, by the way, agreeing with you but I’ll bet not for the same reasons) But ethically speaking, I thought for a moment you were going for it.

    Then I looked up your hate-crimes post where the main reasoning was that the law made the attack on a gay person more reprehensible than attacks on a member of other specific groups. To clarify: Am I correct in assuming then that the ethics involved are in favor of (or no different from) equality under the law? Are you presuming that what exists as a playing field is by definition a level playing field, until its potholes are filled in — or not — in the courtroom? That, like affirmative action, the maintenance of the field is not the responsibility of the law?

  5. Specifying that neither a non – violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, o r to mitigate the severity of any non – capital crime.

    Has an appellate court anywhere ever held that a “non – violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter”. It would seem that such a defense would be foreclosed absent a specific statute permitting the defense.

      • This is where the “It’s Unethical to be a Weenie” principle comes in. It’s dangerous to have people with triggers walking around like normal people. The scary thing is that triggers are not even uncommon; it’s just that not that many triggers cause people to kill each other. Plenty of triggers cause people to dismiss each other, though, for the purposes of making decisions, whether on a jury or at a ballot, and more triggers are being installed every day through events both mundane and traumatic. Until relatively recently I myself had a trigger that activated when other people triggered on things. I’ve since managed to install a counter-trigger, but it’s still a bit of a stressful thing for me.

        I’m just wondering what an “advance” is supposed to be. Playful flirting? Asking someone to dinner? How blunt does it have to be to frighten someone into violence? What if it wasn’t someone of the same sex, but just someone rather unattractive? What if a 90-year-old woman winked and blew a kiss? I’m getting a severe double-standard vibe from this “panic.”

        At the point where someone dies for something so innocuous, “insanity” is a pointless semantic debate. Temporarily legally insane or otherwise, anyone who would suddenly kill someone for “making advances” should be off the streets and in a place where they can get their head fixed.

        • The usual appearance of the defense comes in the “Crying Game” situation, or when the “woman” in an “M. Butterfly” scenario (I still can’t grasp that one) reveals the truth, and the supposedly deceived and humiliated homophobic male explodes with rage. The mere advance provocation rests of really virulent homophobia and anti-gay hatred on the jury, which today I think would be a bad gamble. But desperate is desperate.

      • There are some states where the insanity defense works well and those that it doesn’t so well. In my state (Oregon) there isn’t a real insanity defense. There is “guilty but insane.” The punishment is confinement in a mental facility for the MAXIMUM sentence possible for the crime. Sine murder can be a life without parole, committing murder and claiming insanity will result in lifetime confinement in a mental facility.

    • Has an appellate court anywhere ever held that a “non – violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter”.

      Yes. Even acquittal on all charges. See :”Guardsman’s Defence”. in Wiki

      You asked for an appeals court verdict though. That’s tricky, as in the USA it’s a brave DA indeed who won’t offer a plea bargain – say of misdemeanor assault – in the case of homicide where they victim is gay or trans. There has to be other circumstances making conviction more likely – say that the suspect is black, or has confessed, and even then it’s uncertain.

      You did say “anywhere” though. So here’s one, were despite numerous law reform recommendations, the HAD -Homosexual Advance Defence – has strong support from caselaw in all states other than those that specifically preclude it.

      Example – R v Green

      You can’t understand the California la except in context – the Gwen Arujo case, or that of Lawrence King, shot rwice execution-style in the back of the head in his class.

      In 2004, three men accused of killing a transgender person in California got a mistrial after their attorneys invoked a panic defense. After that, the state then passed the Justice for Victims Act, which was sponsored by gay-rights group Equality California, in a bid to dampen the use of such tactics.,8599,2090287,00.html

      That wasn’t enough, the bid failed, the defence continued to be used.

      However… none of this affects the matter of principle Jack has stated.

      Banning a “gay panic” defence in California in 2014 is no better than banning the “I only killt a nigger” defence in Alabama in 2014.

  6. For a good discussion, see

    Two recent murder trials in Queensland served as reminders that the ‘homosexual advance defence’ is still being employed in courtrooms as a species of provocation, resulting in verdicts of manslaughter instead of murder. The cases sparked a campaign for the abolition of the defence from Queensland law and very nearly succeeded. After setting out what the ‘homosexual advance defence’ is and how efforts to eradicate it have fared elsewhere in Australia, this article seeks to give a full account of the campaign in order to elucidate lessons for future law reform efforts as well as for queer theory.

  7. I completely agree that the gay panic defense is usually and perhaps always garbage, a Hail Mary toss to the jury members who might “understand” how a man would lose it upon discovering, for example, that he had been fraudulently enticed into bed by a he pretending to he a she

    there is quite a difference between a non-violent sexual advance by a homosexual and “discovering, for example, that he had been fraudulently enticed into bed by a he pretending to he a she”.

    • You raise a good point. I am frequently rather disturbed by how hasty people can be have sex with people they barely even know. Regardless of gender identity, it’s nice for people to know what they’re getting into, including anything that may surprise or alarm them. Honesty to me generally means full disclosure, especially for someone you want to have sex with.

  8. Would there be a legitimate excuse for killing an intruder whom you found molesting one of your children? The natural shock and horror of such a discovery, as an affront on every natural standard of decency, would drive most men to blowing away the offender on the spot. In fact, someone who didn’t would be looked on with derision thereafter. It is no less offensive to a man to find himself the object of perverted affections. It is the natural inclination of any man who calls himself one to protect this loved ones and himself from those who constituted the ultimate predatory outcast.

    • Well, I don’t really call myself a man except to avoid confusing people. I am a self-determined conscious entity, and any physical or cultural resemblance to a man is purely incidental. That said, I don’t have the same “natural” revulsion for people to whom I’m not attracted flirting with me that I do for people traumatizing children, regardless of the person’s physical form. I consider equating of the two acts to be insane, and I would equate that to people equating flirting with rape. Seriously, you sound like an extremist feminist (I use the term loosely here) who claims men are irrational monsters and all attempted interactions by men are sexist and oppressive.

      Also, “homosexual” does not imply “predatory” or “outcast,” ultimate or otherwise.

      Furthermore, maybe it’s just me, but if someone is doing something immediately harmful to someone else, I would certainly not frown on using violence to stop them, but I wouldn’t kill them if I didn’t have to. I like to think that the vast majority of people, monster or no, are capable of learning to be better, and killing them removes not only the possibility for them to become better, but also removes the possibility for other people to become better by helping them do so. It’s a bad habit to outright kill people even if they hurt others. Are you not a Christian? Why am I, the atheist, the one that loves my enemies? I hope my spiritual movement doesn’t become as corrupted and forgotten as Jesus’s ended up. I’ve seen what happens when a person learns a lot of lovely phrases and retains a mean, cowardly character through confabulation.

      • It’s one thing to “love your enemies”, E.C. It’s quite another to stand by while they perform the most despicable of acts on an innocent woman or child; not just of one’s own family, but anyone’s at all. Men have a natural ordained duty to protect women and children against predators. That’s hardly either feminist or anti-Christian, BTW. Nor am I surprised that you, a self-confessed atheist, have trouble in understanding the concept, as atheism is not only a refutation of God, but of the nature of God’s creatures. There are crimes against God, Nature and Man that justify stern measures.

        If a man slaps my face in a moment of anger, I’ll likely refrain from violence if I recognize that it was just a matter of passion, not knowing intent to do harm. Therein lies the key to Jesus’ lesson. An inherently good man will be shamed by his deed and you will not have made an enemy by blindly retaliating. But those who set out willingly to do evil to the innocent and helpless must be stopped by whatever means necessary. It’s not a matter of hate, but of one’s duty as a man. As a Christian, a veteran and a man of honor, I understand this.

        • I’ll go one step further. Everyone has a duty to protect everyone they can from harm (within reason), including from predators.

          “Furthermore, maybe it’s just me, but if someone is doing something immediately harmful to someone else, I would certainly not frown on using violence to stop them, but I wouldn’t kill them if I didn’t have to.”

          When I said, “love your enemies,” I meant in the sense of rehabilitating them rather than killing them, not in the sense of letting them hurt people. I recognize that love is not a substitute for trust.

          • I more or less concur with that. I’d just point out that the first line of defense is a man’s duty by nature. Certainly, you should love your enemies… right up to the point where it’s necessary to kill or be killed by them.

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