The gay panic defense is a legal strategy in which a defendant claims they acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances.
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.
Rooted in both homophobia and transphobia, trans panic is a closely related defense applied in cases of assault, manslaughter, or murder of a transgender individual, with whom the assailant(s) engaged in sexual relations unaware that the victim is transgender until seeing them naked, or further into or after sexual activity.
Broadly, the defenses may be called the gay and trans panic defense or the LGBTQ+ panic defense. They are typically used by heterosexual cisgender men against gay men and trans women. In Australia, it is known as the ‘homosexual advance defence’ (HAD), which has been barred in several Australian States.
In 2018, Senator Edward Markey (D-MA) and Representative Joseph Kennedy III (D-MA) introduced bills in their respective Chambers of Congress which would ban the gay and trans panic defense at the national level. Both bills died in committee. In 2019, the bill was reintroduced as the ‘Gay and Trans Panic Defense Prohibition Act of 2019.’
In 2006, California amended its 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. The American Bar Association 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. In 2014, Governor Jerry Brown signed the bill that made California the first state in the US to ban the gay and trans panic defense.
The gay panic defense is generally invoked in cases where the guilt of the defendant is unquestioned, but only to strengthen a more ‘traditional criminal law defense such as insanity, diminished capacity, provocation, or self-defense’ and is not meant to provide justification of the crime on its own. While using the gay panic defense to explain insanity has typically not been successful in winning a complete acquittal, diminished capacity, provocation, and self-defense have all been used successfully to reduce charges and sentences.
The most famous case in which this occurred was the ‘Jenny Jones’ case, in which Jonathan Schmitz was tried for the first-degree murder of Scott Amedure and was instead found guilty of the lesser offense of second-degree murder. During a taping of ‘The Jenny Jones Show,’ a television talk show, Amedure revealed that he was attracted to an acquaintance, Jonathan Schmitz. Three days later, Schmitz confronted Amedure and shot him twice in the chest. He confessed to the killing and was found guilty of second degree murder. The Amedure family successfully sued ‘The Jenny Jones Show’ for wrongful death, but the judgment was subsequently overturned by the Michigan Court of Appeals. The episode was never broadcast, although segments of it were played for television news programs.
The Daily Omnivore 
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