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The gay panic defense or homosexual advance defence is a victim blaming strategy of legal defense, which refers to a situation in which a heterosexual individual charged with a violent crime against a homosexual (or bisexual) individual claims they lost control and reacted violently because of an unwanted sexual advance that was made upon them.^[1][2][3][4] 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.^[5]

The trans panic defense is a closely related legal strategy applied in cases of assault or murder of a transgender individual with whom the assailant(s) had engaged in or was close to engaging in sexual relations with and claim to have been unaware that the victim was transgender,^[2][3][6] producing in the attacker an alleged trans panic reaction, often a manifestation of transphobia.^[7][8] In most cases, the violence or murder is perpetrated by a heterosexual man to an androphilic trans woman.^[7][8]

Broadly, the defenses may be called the "gay and trans panic defense" or the "LGBTQ+ panic defense".^[5][6][9]

History

The gay panic defense grew out of a combination of legal defenses from the mid-nineteenth century and a mental disorder described in the early twentieth, seeking to apply the legal framework of the temporary insanity defense, provocation defense, or self-defense, often by using the mental condition of "homosexual panic disorder".

Homosexual panic disorder

Edward J. Kempf (1886–1971), a psychiatrist,^[10] coined the term "homosexual panic" in 1920 and identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings",^[11] and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions.^{[citation needed]} Kempf identified the condition during and after World War I at St. Elizabeths Hospital in Washington, D.C.^[12]

The disorder was briefly included in DSM-1 as a supplementary term in Appendix C^[13] but did not appear in any subsequent editions of DSM and thus is not considered a diagnosable condition by the American Psychiatric Association.^[14]

Unlike the legal defense created later and named after it, the onset of the condition was not attributed to unwanted homosexual advances. Rather, Kempf stated that it was caused by the individual's own "aroused homosexual cravings".^[15]

Homosexual panic as a mental health disorder is distinct from the homosexual panic defense (HPD) (also known as "gay panic defense") within the legal system. Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the HPD implies only a temporary loss of self-control.^[16]

Types of defenses

The gay panic defense strategy usually falls into three categories of defenses: the provocation defense, self defense (including imperfect self defense) and insanity based defenses (including temporary insanity, irresistible impulse, and diminished responsibility).^{[17] [18]} The gay panic defense is not a stand-alone defense, but rather a legal tactic used by the defense which seeks to obtain an acquittal, a mitigated sentence, or a conviction of a lesser offense.^[18]

Jurisdictions

Australia

In Australia, it is known as the "homosexual advance defence" (HAD).^[19][20] Of the status of the HAD in Australia, Kent Blore wrote in 2012:^[21]

Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. ... Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.

In Australia, as of 2023, all Australian states have either abolished the provocation defense altogether (Tasmania in 2003, Victoria in 2005, Western Australia in 2008 and South Australia in 2020), or have restricted its application. Queensland restricted the defense of provocation in 2011, and further restricted it in 2017 (with a clause to allow it in 'exceptional circumstances' to be determined by a magistrate).^[22] 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.^[21] In New South Wales, the law on provocation was amended to provide that the provocative conduct of the deceased must also have constituted a serious indictable offense.^[23]

South Australia was the first Australian jurisdiction to legalize consensual homosexual acts in 1975; however, as of April 2017^[update] it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defense.^[24] In 2015, the South Australian state government was awaiting^[25][26] the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011, Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principal defense was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defense was that Lindsay's action in stabbing Negre was because he had lost self-control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the directions to the jury on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person would not have lost self-control and acted in the way Lindsay did.^[27] The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have.^[28][29] Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction,^[30] and an application for special leave to appeal to the High Court was dismissed.^[31] 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.^[24] Finally, in 2020, South Australia abolished the defense of provocation altogether.^[32]

In 2023, one Hector Enrique Valencia Valencia in New South Wales was found not guilty of murder after discovering a sex worker he'd engaged with was a trans woman and proceeding to strangle her with a telephone cord. The presiding justice stated that it could not be proven beyond a reasonable doubt that Valencia had intended to seriously harm her. He was instead found guilty of manslaughter.^[33][34][35]

New Zealand

In 2003, a gay interior designer and former television host, David McNee, was killed^[36] by a part-time sex worker, Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. 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. Edwards was jailed for nine years for manslaughter.^[37][38]

In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.^[39][40]

On November 26, 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defense from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.^[41]

Philippines

Lance Cpl. 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. Police said that Pemberton became enraged after discovering that Laude was transgender. After Pemberton served six years of a ten-year sentence, President Rodrigo Duterte gave him an absolute pardon. Sen. Imee Marcos said the pardon would help the Philippines maintain "very deep and very cordial" relations with the US.^[42]

United Kingdom

Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence"^[43][44][45] or the "guardsman's defence".^[46] The latter term was used in a 1980 episode of Rumpole of the Bailey.

United States

Federal laws

In 2018, Senator Edward Markey (D-MA) and Representative Joseph Kennedy III (D-MA) introduced S.3188^[47] and H.R.6358,^[48] respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.^[49][50]

In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019 (S.1721 and H.R.3133).^[51][52] The bills would prohibit a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance of an individual or a perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense.^[49][50] Similarly to S.3188, after being sent to committee, the bill died at the end of 2020, and was re-introduced (as S.1137) in April 2021.^[53][54] It was reintroduced in January 2023.^[55]

State laws

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.^[56][57] 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.^[58][59]

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.^[59]