“Gay panic” as legal defense ban proposed


If a new proposal going through the American Bar Association’s Criminal Justice Section has its way, “gay panic” will no longer be a valid legal defense; the organization is considering banning defense attorneys from using the sexual orientation or gender identity of a victim against them in court.

Too often used by defendants being charged with assault on an LGBT person, the term is a classic case of blaming the victim by claiming they “brought on” the attack—even if it ended in murder—by sexually propositioning the wrong person, causing the other to go into a “homosexual panic,” a state of temporary insanity in which they cannot be held responsible for their actions, no matter how violent.

The term was coined by psychiatrist Edward J. Kempf. In his 1920 textbook, “Psychopathology,” he said that homosexual panic could be considered “a distinct stage in the psychoses.” In modern courts, though the claim may be made, it very rarely succeeds due to a lack of scientific evidence supporting the existence of the “disorder.” 

The “gay panic defense” has been used in many high-profile criminal cases, including in the murders of Matthew Shepard and Gwen Araujo, though it is rarely successful. If merely being sexually propositioned was a legally acceptable reason for killing someone, countless thousands of heterosexual men would be at severe risk for being murdered by women they made a pass at.

On the preliminary agenda for the ABA’s next meeting, report #113A, under the headings Commission On Sexual Orientation And Gender Identity and Commission On Youth At Risk, is listed as “[urging]governments to take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses, which seek to partially or completely excuse crimes on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.”

The executive director of the National LGBT Bar Association, D’Arcy Kemnitz, told 429Magazine, “The continued use of the gay and trans panic defense tactics marks an egregious lapse in our nation’s criminal justice system. The LGBT Bar is proud to have successfully advocated for equal rights and protections for the victims of these crimes.”

For the resolution to become official policy, it must be approved by the American Bar Association’s House Of Delegates at the annual meeting in August.


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