The LGBTQ+ Panic Defense: A License to Kill

This defense strategy allows perpetrators to get a lesser sentence for assaulting or killing an LGBTQ+

*Trigger warning: This article discusses violence against the LGBTQ+ community. Please engage in self-care as you read this article.

In 2015, Daniel Spencer, a 32-year-old gay man, invited his neighbor James Miller, 66, to his apartment to drink and play music together.

Later that night, Miller stabbed Spencer four times in the back, killing him. He alleges that Spencer came on to him even though he pushed away the advances.

Miller was found guilty of criminally negligent homicide and sentenced to 10 years probation and six months jail time.

He also received 100 hours of community service and had to give restitution of $11,000 to the family of Spencer.

The sentence he received was much less than he would have gotten with manslaughter.

How is the LGBTQ+ panic defense legal?

Miller got away with murder by using a defense strategy called the LGBTQ+ panic defense, also called the homosexual panic defense or gay panic defense.

It’s a legal strategy in which the defendant claims the “same-sex sexual advances” were so “offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane.”

In other words, it blames the victim’s sexual orientation or gender identity for the defendant's violent reaction in order to reduce the assault or murder charge.

Note that it’s not used as a standalone defense, but it’s used with other defense strategies to reduce the severity of the charges or sentencing.

Millers’s lawyer used this defense to curtail 1st-degree murder charges to a much-reduced sentence.

It wasn’t even considered a hate crime.

How is this fair, you ask? Well, it isn’t. It’s a lazy excuse hiding the obvious — homophobia, transphobia, and LGBTQ+ phobia, as a whole.

These assailants and murderers get to say — “ I lost control ’cause of you. I committed these criminal acts ’cause of who you are.”

You’d think we’re living in barbaric times.

“Homosexual panic” was coined by Edward J. Kempt, a psychiatrist, a little over a century ago in 1920.

The definition of homosexual panic is:

A condition of panic due to the pressure of uncontrollable perverse sexual cravings, and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions.

It was at one point considered a “diagnosable medical condition” and listed in the DSM, a publication by the American Psychiatric Association (APA), which is the largest psychiatric organization in the world.

Here’s some good news. The term is no longer recognized by the DSM, but as of April 2021, the LGBTQ+ defense strategy is still allowed in 38 states.

Crazy, right?

And here we are condemning a patriarchal country like Jordan where it's legal and the punishment is minimal for male family members who kill a female family member who has brought dishonor upon the family.

“Dishonor” could be something as innocent as women conversing with men who aren’t related to them, having sex outside of marriage even if they are victims of rape or assault, refusing to have an arranged marriage, and more.

Sounds absurd, right?

How are we any better when violence against the LGBTQ+ community is allowed?

When their sexual orientation or identity — or who they are — is a reason to commit heinous crimes against them?

Look at the statistics.

LGBT people (16+) are nearly four times more likely than cis genders to experience “violent victimization,” meaning “rape, sexual assault, and aggravated or simple assault”.

LBT women are five times more likely than cis women to experience violent victimization. The risk of violence for GBT men is more than twice that of non-GBT men.

And about half of all crimes are not reported to the police.

The LGBTQ+ community is already violated for just being who they are. Do they really need an additional target — like the LGBTQ+ panic defense strategy — on their back?

In solidarity

So far, it’s difficult to figure out how many court cases have used the LGBTQ+ panic defense strategy.

Information about whether the defense strategy was used or the sexual orientation or the identity of homicide or assault victims is not tracked by the government or the court.

The crux of the matter is how it’s alarming and unexcusable that in a democratic country like the US, the LGBTQ+ community has to live in fear of becoming a statistic.

The good news is that at the federal level, The Equality Act, which bans gay/trans panic defense, was introduced in 2021. If this goes through, the LGBTQ+ panic defense will be abolished across all states.

Individually, there are steps you can take to hasten to ban the LGBTQ+ panic defense. Click here to find out how.

Let’s show solidarity with the LGBTQ+ community by writing about or citing this topic. Feel free to link or mention this article to spread awareness.

June is the editor of Bitchy, a Medium publication that explores gender, identity, and culture through the feminist lens. Bitchy is also on Facebook, Twitter, and Substack.