The inclusive term "LGBTQ+ panic defense" is the defensive strategy adopted in U.S. courts to justify any violent reaction against an LGBTQ+ person, in order to induce the jury to acquit the defendant of the charges against him. This strategy is based, in fact, on the implicit assumption that the sexual orientation - in cases of homosexuality - or gender identity - in the case of transgender people - of the victim is to be considered the main reason for the brutal violence perpetrated by the other person, violence that frequently culminates in actual murders. Such a defense conveys the idea that the defendant's loss of self-control, and the violent actions that ensue, are justifiable if such actions are inflicted on LGBTQ+ individuals, as interactions of a homosexual nature would rightly be considered abhorrent to cisgender or heterosexual persons, as well as such as to cause legitimate outbursts of rage. Back in 2018 , Jenny Pizer, legal and policy director of the LGBTQ advocacy group Lambda Legal, emphasized how detrimental such a strategy is to people in the community, as it reinforces the assumption that there are categories of individuals whose lives are less valuable because they do not reflect a heterosexual and cisgender canon.
This type of legal tactic was first recognized in the 1960s, at a time when homosexuality was still categorized as a mental illness. One of the first cases in which it was used was during the trial of Joseph Rodriguez of California, who - under indictment for murder - built his defense on the basis of an alleged "homosexual panic" that would have led the defendant to commit murder because of the fear of being sexually harassed by the victim. A recent case, however, dates back to 2015, with the discovery of the body of 32-year-old Daniel Spencer in his home. James Miller, a defendant in the murder in question, used precisely the "gay panic defense" as the focal point of his defense.
Traditionally, the LGBTQ+ panic defense is used in three ways to mitigate cases of murder or other types of violence: the first of the three forms is called the "insanity or diminished capacity defense" and is presented as an assertion of a supervening nervous breakdown in the defendant, triggered by sexual advances made by the victim. This typology is based on an alleged psychological disorder, called "gay panic disorder", whose existence was refuted by the American Psychiatric Association in 1973. Nevertheless, from the legal point of view such a justification is still frequently used. The second form is the "provocation defense". It would allow the defendant to testify that the sexual advances made by the victim were sufficient provocation to resort to murder. The third and final form is called the "defense of self-defense," by which the defendant is able to assert his belief that the victim - by virtue of his gender or sexual orientation - was on the verge of causing bodily harm to the defendant and therefore any action taken is categorized as self-defense.
The very existence of such a dangerous defensive strategy contributes greatly to fuelling hate crimes committed against LGBTQ+ people, which, in 2019 alone, amounted to 1,656, or about 18.8% of total cases.
On March 31, 2021 - during the International Transgender Day of Visibility - Virginia became the twelfth of fifty U.S. states to pass a legislative ban on the use of LGBTQ+ panic defense as a legitimate form of legal defense, along with states such as California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, and New York. A similar veto proposal has been advanced but not yet introduced in thirteen other states: Iowa, Maryland, Nebraska, Florida, Oregon, New Mexico, Vermont, New Hampshire, Minnesota, and Massachusetts have begun a legislative path toward permanently abolishing it by the end of 2021.
Translated by Francesca Cioffi
Original version by Sara Scarano