MYRTLE BEACH, S.C. (WBTW) – In Missouri, a man on death row argued that he shouldn’t have been convicted for first-degree murder.
It wasn’t murder, the defense argued. The defendant shot and killed the man — who he’d pretended to be in a relationship with in order to get a Camaro — because the man made a sexual advance on him.
The argument worked. The man walked out of his post-conviction relief hearing after a jury overturned the death sentence, downgraded his charge to criminally negligent homicide, and sentenced him to six months in jail, 100 hours of community service, $11,000 in restitution and 10 years of probation, as recommended by the jury.
The case is one of many documented by a 2021 report from the UCLA School of Law Williams Institute, which set out to uncover uses of what is referred to as the gay or trans panic defense.
Here’s how it works: Under the legal strategy, defendants claim that they entered a “homosexual panic” once they found out a person was gay or transgender, which then launched them into a mental breakdown that made them kill in a “crime of passion.” The strategy can also lead to claims that the killing was in self-defense, or pursue an insanity defense, therefore reducing murder charges to manslaughter or justifiable homicide.
In short, it means that a defendant can say they killed a person simply because they found out the person was LGBTQ, and therefore they acted reasonably.
“You can’t use that in any other context,” said D’Arcy Kemnitz, the executive director of the LGBTQ+ Bar Association. “You can’t see that somebody can bring it on themselves for being who they are.”
The American Bar Association has called since 2013 to outlaw the defense.
“By fully or partially excusing the perpetrators of crimes against LGBTQ victims, these defenses enshrine in the law the notion that LGBT lives are worth less than others,” the American Bar Association resolution reads.
A year later, California became the first state to ban it. But despite continued calls, it remains legal in 35 states, and there’s no movement to expand it elsewhere.
With an influx of anti-LGBTQ legislation across the nation, advocates worry that violence against the community will increase, which may further open the courtroom up to the legal strategy.
Already facing violence
The LGBTQ community faces much higher risks of violence than the straight and cisgender communities.
FBI data also shows that 16.7% of hate crimes target people because of their sexual orientation, and 2.7% for their gender identity.
A 2019 report from the Transgender Law Center found that 47% of transgender people who live in Southern states have experienced high-intensity violence from strangers. For trans women and trans feminine people, that is 58%.
However, because some states do not have hate crime laws, and data on murders of transgender people aren’t collected, the full impact is unknown.
Like tracking violence, tracking the use of gay and panic defense cases is extremely difficult. Since the 1960s, the defenses have been included in court opinions issued in more than half of the states, according to the American Bar Association. However, a jury’s reasoning isn’t published, and the data is skewed towards trials where the defense didn’t work, or when the defendant challenged their conviction.
A 2020 report uncovered at least 104 instances of the panic defense being used in 35 states from 1970 to 2020. The researchers most frequently identified it in Texas, although the authors estimate that there are hundreds more cases nationwide that they couldn’t find.
Charges were reduced in one-third of the tracked cases.
The killings detailed in the case tended to be people who were stabbed to death – with knives used in 45.2% of cases and guns in 26% – before the suspects stole the victim’s credit cards and vehicle.
“These are incredibly violent crimes,” Kemnitz said.
An American Bar Association publication references a 2005 case where two men forced a transgender woman into a bathroom, and then “brutally killed the victim by striking her with their fists and heavy objects such as a frying pan.” The attackers had been friends with the victim and had separate sexual encounters with her in the past. They killed her once they found out she was transgender.
The jury rejected their defense and they were convicted of second-degree murder.
While several of the defendants claimed they killed their victims after unwanted, nonviolent sexual advances, most ended in a robbery.
One case from Iowa claimed that the defendant hit the victim with a crowbar and then strangled him to death after the victim touched his leg in an adult movie theater. After killing their victim, the killer then left with a bag of merchandise and $30.
One defendant in a 2004 case confessed and was able to walk out of the courtroom by stating that the victim had made a pass at him, according to Kemnitz. In another, a man said he assumed a gay man was going to make a sexual pass at him, so he stabbed the victim to death and let him bleed out.
Gay and transgender people already face an uphill battle in the courtroom, according to Colleen Condon, a South Carolina family court attorney who focuses on LGBTQ cases
She often sees judges act shocked when they find out a case involves a same-sex couple — which Condon said can lead to different outcomes. In family court, a judge decides cases, not a jury, which lets results hinge on a judge’s potential prejudices.
“But certainly we think that looking at fear and discrimination in a jury situation, unfortunately, can be effective, and we are seeing discrimination in a variety of ways,” she said.
An influx in hate
The last year has seen an influx in anti-LGBTQ legislation, including bills flooding state legislatures banning transgender girls from sports, blocking gender-affirming care for teens and cutting off insurance coverage for hormone replacement therapy. Other bills require schools to out LGBTQ students to their parents and silences teachers from talking about sexual and gender identity completely.
In addition, Clarence Thomas’ opinion in the Dobbs decision that overturned Roe v. Wade has put the future of same-sex marriage rights in the crosshairs.
Legislation like sports and gender-affirming care bans lead to more hostility against the transgender community, according to Erin Reed, a legislative researcher who tracks bills across the nation that would be harmful to people who are transgender.
“You are just asking for more confrontations that can and do turn violent,” Reed said, pointing to a school in Wisconsin that was inundated with bomb threats after it faced a Title IX lawsuit regarding discrimination toward a transgender student.
When it comes to the trans panic defense, however, it’s still difficult to understand the full scope.
“It is extremely hard to track sometimes,” Reed said. “There are national cases that get attention. Sometimes, the issues are bypassed because of the fact that in a lot of these encounters, it is one person, and the other person is no longer alive.”
Across social media, Reed often sees people write that LGBTQ people deserve to be attacked because of their identity, or that they brought it upon themselves by being “deceptive.”
A lot of the cases, she said, are linked to domestic violence, and often, perpetrators end up not facing charges.
She points specifically to Isiemen Etue, a former Virginia Tech football player who was found not guilty this year of murdering Jerry Paul Smith. Smith’s sexual and gender identities are not publicly known, although Smith’s family has told reporters that Smith was a gay man.
Smith’s beaten body was found during a welfare check – facial bones broken and teeth fragments missing.
The two had met on Tinder and had a sexual encounter, with Smith using a female name. Smith later returned to question Smith’s gender identity and then killed Smith.
Etue claimed self defense, with his attorney calling the sexual encounter “a wicked sexual ruse,” according to the Advocate, and stating that Etute said he saw Smith reach for a weapon.
“I think it reminded a lot of trans people and LGBTQ people, in general, hey, you’re not guaranteed safety with romantic partners in this country in these places,” Reed said.
Virginia’s ban on the defense strategy had not yet gone into effect at the time of the trial.
The Trans Formations Project started in spring 2021 to track anti-trans bills across the nation.
Alex Petrovnia created the website to provide a cohesive source to find legislations. He had previous used Twitter threads exploring bills, tagging politicians and encouraging people to leave comments.
The website is run by a group of volunteers who search for common keywords in anti-LGBTQ bills. The results are then manually filtered to identify potentially harmful pieces of legislation.
“The more we put out information on this, the more people are rightly horrified,” Petrovnia said.
Many of the bills across states are identical to each other. Over the last two years, he said, it’s been nonstop.
“Generally, there is such a loss of trust and there is such a sense of fear right now among trans people, especially young trans people,” said Petrovnia, who added that as someone who is transmasculine, he’s seen how harmful paranoia can become. “They have no idea what their future is going to look like, because of this legislation, and that has dramatic impacts. I know that people have reached out to me and said they are remaining closeted because they are afraid of the consequences of coming out.”
For people who are transfeminine, he said, it’s even worse – and not expected to improve as laws are proposed.
The bills promote culture wars, he said, and he predicts that as the legislation increases, so will hate crimes and the use of panic defenses.
“I definitely think these bills are emboldening a lot of horrible things, a lot of people with horrifying views to act out against the LGBTQ community,” he said.
An effective strategy
Criminal defense attorneys have to be fierce advocates for their clients, Kemnitz said, and have told her they’ll do whatever they can to help their defendant — including utilizing the panic defenses.
But it’s effective, she said, because juries allow it to be.
“It absolutely works,” Kemnitz said. “It works because you’re playing on the jury members or the judges who are biased against LGBTQ+ people.”
Passing bans isn’t an “issue of progressive politics versus conservative Christian values,” she said, but needs to happen to bring violent people to justice.
“I think a lot of defense lawyers are outraged by this, just like we are outraged by this,” she said.
Cultures change, and she expects the rising generations to be less biased. In the meantime, the defense continues to appear.
Condon has not heard of any legislation in that has attempted to protect LGBTQ people from discrimination in South Carolina courtrooms.
“Right now, we are just hoping to prevent more anti-trans legislation, and anti-gay legislation, but not getting anything pro-trans community or pro-LGBTQ seems inconceivable at this time,” Condon said. “I can’t imagine someone trying to introduce such a bill at this point.”
She referenced new laws nationwide, including those that would ban her from having a picture of her wife on her desk if she was a teacher in Florida.
She said legal experts across the country are readying themselves to tackle the tide of legislation.
The arguments that serve as the backbone to panic defenses are “surprisingly long-lived historical artifacts,” the 2013 American Bar Association report said.
The report specifically cites the infamous murder of 21-year-old Matthew Shepard, who was 21 when he made a sexual advance at two men in a gay bar before he was left to die after being beaten and tied to a fence.
And during the murder case for 19-year-old Jorge Steven Lopez-Mercado, who was decapitated, dismembered and burned because of being gay, a public investigator said that “people wo live this lifestyle need to be aware that this will happen.”
The resolution offers several examples of ways to stop the defenses, including instructing a jury to not let bias or prejudice influence its opinion, or to specify “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, or to mitigate the severity of any non-capital crime.”
Reed calls laws banning the defense “the absolute minimum.”
“These are base-level things that should be able to get across the finish line in most cases,” she said.
But politicians have been unwilling to touch the problem, she said, even though it’s a basic protection.
“There are so many places where they can improve the situation of people within their borders and they aren’t doing anything,” Reed said.
Nationally, it’s also been silent.
“I don’t trust the national government to ever do anything with LGBTQ people, because we are such a hot button issue right now,” Reed said. “As a result, there are people getting violent acts against them, people getting harassed on a daily basis.”
She, along with Petrovnia, urge people to get involved and contact their legislators.
Petrovnia said that not only are harmful bills normalizing violence against the transgender community and sending the message that straight comfort is being prioritized over trans safety, but that the proposed laws are having severe mental health impacts on the LGBTQ communities.
“Honestly, the impact of this legislation cannot be overstated, and I think there is just so much irrevocable damage that is being done by these bills being introduced at all,” he said.