Gay panic defense
[1][2][3][4][5] A defendant will use available legal defenses against assault and murder, with the aim of seeking an acquittal, a mitigated sentence, or a conviction of a lesser offense.
A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.
[6] The trans panic defense is a closely related legal strategy applied in cases of assault or murder of a transgender individual whom the assailant(s) had engaged with, or were close to engaging with, in sexual relations, and claim to have been unaware that the victim was transgender,[3][4][7] producing in the attacker an alleged trans panic reaction, often a manifestation of transphobia.
Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the legal defense implies only a temporary loss of self-control.
[11] Edward J. Kempf, a psychiatrist,[12] coined the term "homosexual panic" in 1920 and identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings",[13] and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions.
... Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit.
[25] In a differing approach, New South Wales, the ACT and Northern Territory have implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) are not a valid defense.
[26] Garry Wait, a 20-year-old waiter, mounted an unsuccessful gay panic defence after being charged with the murder of 63-year-old former federal MP Bill Arthur in 1982.
[35] In April 2017, the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and/or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced.
[36] In 2003, a gay interior designer and former television host, David McNee, was killed[37] by a part-time sex worker, Phillip Layton Edwards.
The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement.
Joseph Scott Pemberton, a U.S. Marine from Massachusetts, was convicted of homicide (but not of murder) in the killing of Jennifer Laude in a motel room in Olongapo in the Philippines in 2014.
[48] The guidance suggests that deception or non-disclosure about one's birth sex could impact consent, and such cases may result in criminal charges.[relevant?
[57] In 2006, the California State Legislature amended the Penal Code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes.
[58][59] The American Bar Association (ABA) unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses.
[60][61] Following the ABA's resolution in 2013, the LGBT Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.
[62] In August 2017, Bruce Rauner, Governor of Illinois, signed SB1761,[63] banning the gay and trans panic defenses in that state.
[75] On June 30, 2019, the day of the NYC Pride March, Governor Andrew Cuomo signed the ban into law, effective immediately.
[114] In April 2019, both houses of the Hawaii State Legislature passed bills to prohibit the gay and trans panic defense (HB711 and SB2).
[120][67] New Jersey passed a bill without a single vote in opposition to ban the gay and trans panic defense; it was signed into law in January 2020.
[125] In December 2020, the Council of the District of Columbia unanimously voted on a bill to ban the use of the "gay and trans panic defense".
The bill will then go to Capitol Hill for a 30 legislative day review by Congress, required by the District of Columbia Home Rule Act.
In any criminal trial or proceeding, upon the request of a party, the court shall instruct the jury substantially as follows: "Do not let bias, sympathy, prejudice, or public opinion influence your decision.
The materials, which shall be developed in consultation with knowledgeable community organizations and county officials, shall explain how panic strategies are used to encourage jurors to respond to societal bias against people based on actual or perceived disability, gender, including gender identity, nationality, race or ethnicity, religion, or sexual orientation and provide best practices for preventing bias from affecting the outcome of a trial.
[...] (f) (1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable 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 an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.
