Michigan is the latest state to ban the “gay and trans panic” criminal defense, making it unlawful to use “the discovery of a person’s actual or perceived gender identity, gender expression, or sexual orientation as justification for the commission of a crime.”
States have increasingly outlawed the defense in recent years, starting with California in 2006. But it is still lawful in most states. Michigan Gov. Gretchen Whitmer (D) signed the bill Tuesday.
Advocates for outlawing the defense point to high-profile cases such as the 2015 murder of David Spencer in Texas, who was stabbed by a friend who said he tried to kiss him. James Miller was sentenced in 2018 to six months in prison after his murder charge was downgraded to criminally negligent homicide following a “gay panic” defense argument from his attorney.
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The American Bar Association has called for legislative action to “curtail the availability and effectiveness” of the defense, saying that “successful gay and trans panic defenses constitute a miscarriage of justice.”
What is the gay or trans panic defense?
The legal defense is used when a defendant charged with a violent crime attempts to use the victim’s sexual identity as a mitigating factor in his culpability, with the goal of acquittal or reduced charges.
A man accused of killing another man or trans woman, for example, might argue in court that the victim had either indicated interest in him, tried to sexually assault him or engaged in sexual behavior with him without disclosing their sexual identity.
W. Carsten Andresen, an assistant professor of criminal justice at St. Edward’s University in Austin, has compiled a database of gay and trans panic defense cases from media articles, legal transcripts and academic writing. He found more than 700 instances of the defense being used in murder cases between 1970 and 2024 in the United States, including 18 in Michigan, he said in a phone interview. It was an effective tactic in reducing charges about a third of the time, his analysis of early data found.
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Andresen said there were four main ways the argument is used.
The first is provocation, in which a defense attorney argues that a victim “hitting on” a defendant is “so upsetting, and it would be so upsetting to any man, that the violence is understandable,” Andresen said. He added this was used more often as a tactic to reduce charges, for example from first- or second-degree murder to manslaughter.
The second is to bolster a self-defense argument in which the perpetrator of violence alleges the victim sexually assaulted him or attempted to assault him.
The third is insanity, in which the defendant argues that he had such a strong reaction to the actions of an LGBTQ+ person that he broke with reality and used violence, which has typically not been successful in courtrooms, Andresen said.
The fourth is diminished capacity, a lesser version of insanity that argues the victim’s sexual identity affected the perpetrator’s mental state.
What does the Michigan ruling mean?
The Michigan law bans using a person’s real or perceived sexual identity in a provocation defense, a “heat of passion” defense or a reduced mental capacity defense.
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Andresen said it empowers judges and prosecutors to stop or object to defense attorneys using a victim’s sexual identity when making arguments to a jury. “There are still ways that the defense attorney will try to get around it,” he said. “But it allows you to be vocal in calling this out and identifying it for what it is.”
“It’s been likened to rape shield laws with women, where if a woman is sexually assaulted, you’re not allowed to bring up her sexual history,” he added. “You hopefully are providing a little bit more context for what a defense attorney is trying to do when they try to insinuate that somebody … is somehow to blame or that the offender is less culpable for the harm that they caused.”
Where else is the panic defense banned?
Twenty states and the District of Columbia have some form of legislation prohibiting an LGBTQ+ panic defense: California, Illinois, Rhode Island, Connecticut, Hawaii, Maine, Nevada, New York, D.C., Colorado, New Jersey, Washington, Maryland, Oregon, Vermont, Virginia, New Mexico, New Hampshire, Delaware, Minnesota and Michigan, according to the National LGBTQ+ Bar Association.
There is legislation pending in Pennsylvania, and it has been introduced but failed in Arizona, Arkansas, Florida, Iowa, Montana, Wisconsin, Georgia, Massachusetts, Nebraska, North Carolina and Texas, the group said.
A federal bill was introduced by Sen. Edward J. Markey (D-Mass.) and Rep. Chris Pappas (D-N.H.) in 2021 and reintroduced in 2023 but has not passed.
