LGBTQ Rights

Gay Panic Defense – Yes…it’s a thing

You may have seen in the news recently that an Austin, Texas man avoided prison after using a rare “gay panic defense”. According to KXAN in Austin, James Miller will serve 10 years of probation after being sentenced for criminally negligent homicide for killing his neighbor, Daniel Spencer, in east Austin in 2015. The jury recommended Miller serve 10 years of probation and the judge was required to honor the jury’s recommendation. However, Judge Brad Urrutia also added a maximum allowed six months jail time, also requiring Miller to complete 100 hours of community service, pay nearly $11,000 in restitution to the victim’s family and use a portable alcohol monitoring device for at least one year. Prosecutor Matthew Foye says the judge’s maximum penalty and the fact that the jury didn’t let Miller off on his self-defense claim reinforces that Daniel Spencer was a victim of a senseless killing.

What is Gay Panic Defense?

Gay panic defense asks the jury to find that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.  They characterize sexual orientation and gender identity as objectively reasonable excuses for loss of self-control, and thereby mitigate a perpetrator’s culpability for harm done to LGBT individuals. By fully or partially excusing the perpetrators of crimes against LGBT victims, these defenses enshrine in the law the notion that LGBT lives are worth less than others.[1]

48 U.S. states allow the “gay panic” or “trans panic” defense, in which a defendant can cite a victim’s sexuality or gender identity as the justification for violent crime to obtain lesser charges or a reduced sentence. The gay panic/trans panic defense is illegal in Illinois, which banned it in May 2017. California banned it in 2014, after the American Bar Association issued a recommendation that it be eliminated. Similar legislation to ban it is pending in New Jersey, Washington, Rhode Island, and the District of Columbia. The defense is not a formal legal provision, but a tactic, a way to argue that the attacker wasn’t in his right mind at the time, or that the victim provoked the defendant, or even that the attack in question might have been self-defense. Activists are now mounting legislative campaigns to ban the defense in seven other states this year.

Banning the defense

Brad Sears, the founding director of the Williams Institute, a leading LGBT legal think tank, recently co-authored model legislation for eliminating the gay and trans panic defenses. Sears says, “the legal doctrine states that homophobia and transphobia that leads to a murderous rage is not only understandable, it is how a ‘reasonable’ person would react. The cost of this doctrine is not only measured by the number of people who are killed, but in the message it sends about all LGBT people…that they deserve to be attacked for just being themselves. This trend is reflected in the current political climate, in which advances in LGBT equality are being steadily rolled back by legal maneuvers at the state level, including broad religious exemptions to civil rights laws and narrow interpretations of the right to marry, such as Texas’ position that it should be able to deny spousal employment benefits to a same-sex spouse.

What Can We Do?

Banning these defenses is crucial in sending a clear message to the LGBTQ community that homophobia and transphobia can’t be used to justify violence against them.

Call your Representatives and demand legislation to ban this type of defense. A phone call always works more effectively than an email or letter. This is a handy map that will bring you directly to your state’s legislature website where you can find your Representative’s phone number. Additionally, offer to send your Representative a copy of “Model Legislation for Eliminating the Gay and Trans Panic Defenses” which can be found here (click “Read the full report” and download the pdf).

[1] American Bar Association.


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