Opinion: The LGBTQ+ ‘Panic’ Defense Needs to Go in Md.

Getty Images/Virginia Mercury photo.

This year, Del. Julie Palakovich Carr introduced House Bill 231: 

“Establishing that the discovery or perception of, or belief about, another person’s race, color, national origin, sex, gender identity, or sexual orientation, whether or not accurate, does not constitute legally adequate provocation to mitigate a killing from the crime of murder to manslaughter or an assault from the crime of assault in the first degree to assault in the second degree or another lesser crime.”

This bill was introduced previously during the 2020 Maryland General Assembly session as House Bill 488. Last session, this bill received support from the Baltimore Transgender Alliance, Lambda Legal, Maryland Psychological Association, PFLAG Metro DC, FreeState Justice, LGBTQ Democrats of Montgomerie County, LGBT Bar Association, State Attorney’s Office for the City of Baltimore, Naral Pro-Choice MD, Maryland Office of the Public Defender and the ACLU of Maryland. The bill received almost no opposition and passed through the House of Delegates.

Unfortunately, like many bills in similar situations, the onset of the coronavirus pandemic and the subsequent quarantine caused the legislature to end early and prevented this bill from passing into law. 

It is absolutely imperative that HB 231 passes into law this year.

According to the LGBTQ Bar, the LGBTQ+ “panic” defense is:

 “a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder. It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses. When a perpetrator uses an LGBTQ+ ‘panic’ defense, they are claiming that a victim’s sexual orientation or gender identity not only explains — but excuses — a loss of self-control and the subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others.”

Countless legal scholars have come out against the LGBTQ+ “panic” defense. In 2008, professor Cynthia Lee published a paper, “The Gay Panic Defense,” in the George Washington University Law Review Journal. There, she argued that “gay panic arguments are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators,” as well that they “capitalize on an unconscious bias in favor of heterosexuality, which is prevalent in today’s heterocentric society.”

Riley Grace Roshong

In 2020, Lee published a follow-up paper, “The Trans Panic Defense Revisited,” in the George Washington University Law Review. There, the professor extended the discussion of the “panic” defense to how it affected transgender people in general and trans women of color in particular. She explains that “[a] murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female  —  an individual thought to be male when born who identifies as a woman  —  provoked him into a heat of passion, causing him to lose his self-control.” Similarly to how the gay “panic” defense relied on negative stereotypes about gay men, Lee argues that this does the same with trans women by “inappropriately validat[ing] bias against transgender individuals when we live in a pluralistic society that should be tolerant and accepting of all individuals.” Lee concludes claiming “education alone is insufficient to ensure that juries reject the trans panic defense” and that legislative bans are necessary to redress the defense.

For other scholarship arguing the detriment of the LGBTQ+ “panic” defense and looking at specific instances where it has caused harm, see the following publications: “(Trans)Forming the Provocation Defense” by Morgan Tilleman, the Journal of Criminal Law & Criminology at Northwestern University School of Law, 2010; “The Trans Panic Defense: Masculinity, Heteronormativity, and the Murder of Transgender Women” by Cynthia Lee, Hastings Law Journal, 2014; “’Don’t Talk to Me About Deception’: The Necessary Erosion of the Trans* Panic Defense” by Amee Wooda and Vaness R. Panfil, Albany Law Review, 2015; and “Excusing Murder? Conservative Jurors’ Acceptance of the Gay-Panic Defense” by Salerno et. al., American Psychological Association Journal of Psychology, Public Policy, and Law, 2015.

For another kind of scholarship arguing against this defense from a philosophical perspective, YouTuber Natalie Wynn (owner of the channel “Contrapoints”) made a video essay called “Are Traps Gay” in reference to related internet political discussion. In that video, Ms. Points argues the idea that “trans women are actually men trying to ‘trap’ straight men into having sex with them” is an internet manifestation of the same mentalities which motivate trans “panic” murders: because cis men may wrongly believe that trans women are men, experiencing attraction toward someone who they later discover is trans may lead them to have a violent reaction in order to “defend” their heterosexuality. 

According to the LGBTQ Bar, the LGBTQ+ “panic” defense has been banned in California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Colorado and the District of Columbia. Legislation has also been introduced to ban the LGBTQ+ “panic” defense in Minnesota, Pennsylvania, Texas, Massachusetts, New Mexico, Wisconsin, Iowa and Virginia. In July 2018, The Gay and Trans Panic Defense Prohibition Act of 2018 was introduced by U.S. Sen. Ed Markey (D-MA) and by Congressman Joe Kennedy (D-MA). The bill was reintroduced in the House and the Senate in June 2019.

In light of this evidence, banning the use of a person’s gender identity or sexual orientation is necessary to ensure both the safety of LGBTQ+ and other minority individuals, as well as to ensure that their murderers are properly prosecuted and to uphold the standard that these are not socially acceptable justifications for taking the life of another human being. 

— RILEY GRACE ROSHONG

The writer is a law student in Baltimore and a FreeState Justice board member.