Kijana Plenderleith

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The LGBTQ+ “panic” defense allows “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.”[1] Eleven states have banned the use of the LGBTQ+ panic defense; nine more have proposed legislation doing the same. However, not all states that have enacted this legislation have placed outright bans on the defense entirely. Maine, Rhode Island, and Connecticut have legislation that includes language that bars the defense only if it is based solely on the discovery of a victim’s actual or perceived sex or sexual orientation.[2] In effect, inclusion of the word solely creates a loophole allowing defendants to still claim the defense.

The “gay panic” or “trans panic” defense is not officially recognized for use by any legislation other than legislation which bans it.[3] This defense is most frequently used, according to the LGBT Bar, as a “legal tactic used to bolster other defenses.”[4] The history of its use has changed over time. Originally used as the stand-alone “gay panic” defense, there is a new incarnation: trans panic. This updated language is most frequently used when a person transitioning from male to female is assaulted or murdered, however is also a justification for violence against all transgender individuals.[5]

The panic defense is invoked in three main defense strategies: (1) provocation; (2) self-defense; and (3) diminished capacity.[6] When a defendant uses one of these defenses, the panic defense may bolster any original claim.[7] The panic defense would not totally acquit someone of murder or assault but would instead create a justification pandering to a sympathetic jury. Generally, a provocation defense is a defense to murder or manslaughter.[8] When this defense is successfully invoked, an original charge may decrease in severity (e.g., murder may drop to manslaughter).[9]

            This Note discusses closing the gap on the panic defense. Part I walks through the contemporary use of the LGBTQ+ panic defense generally. The defense’s history is limited because there are no laws sanctioning its use; instead, courts allow these arguments without consequence. This defense is rarely used on its own; instead, there are three main ways the defense will be brought up in court: (1) provocation, (2) diminished capacity, and (3) self-defense. States are slowly beginning to outlaw the defense through legislation; however, some states leave a loophole in the statutes by only barring the defense if it is the only justification. Part II discusses the implications of allowing this gap to still exist. This section compares state legislation of Rhode Island, Maine, and Connecticut. This section provides examples of how, through statutory interpretation, there is gap that effectively lifts any purpose of the panic defense legislation. Finally, Part III discusses arguments for leaving the gap open, then suggests compromises or solutions to balance protection in each state’s legislation. Nevada’s legislation acts as the model which categorically bans all use of the defense.[10]

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[1] LGBTQ+ “Panic” Defense, The LGBT Bar (Oct. 13, 2020), https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/.

[2] Me. Stat. tit. 17-A, § 108(3) (2019); 12 R.I. Gen. Laws Ann. § 12-17-17 to -19 (West 2018);  Conn. Gen. Stat. Ann. § 53a-13 (2020).

[3] Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471, 475 (2008).

[4]The LGBT Bar, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] David Alan Perkiss, A New Strategy of Neutralizing the Gay Panic Defense at Trial: Lessons from the Lawrence King Case, 60 UCLA L. Rev. 788, 797 (2013).

[10] Nev. Rev. Stat. Ann. § 193.225 (West 2019).

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