Gay and Trans Panic Defense No Longer Viable in Michigan

Michigan has banned the gay panic defense from its criminal trials. The gay panic defense is when a criminal defendant claims they lost control and reacted violently because of an unwanted sexual advance that was made upon them. The trans panic defense is a similar defense revolving around transgender persons instead of homosexual persons.  

Michigan Governor Gretchen Whitmer signed a bill prohibiting an individual’s actual or perceived sex, gender identity, sexual orientation, or gender expression from being admissible in a criminal trial to demonstrate reasonable provocation, an act committed in a crime of passion, or a defense of reduced mental capacity.  

The gay panic defense is a combination of temporary insanity and self-defense. It is an affirmative defense, thereby placing the burden on the defendant to prove certain elements. The gay panic defense usually doesn’t result in an acquittal but instead a reduced charge or sentence.   

The most infamous example of the “gay panic defense” was in the killing of Matthew Shepard in Wyoming in 1998 by Aaron McKinney. The defense lingered even after McKinney was convicted to life in prison. In 2018, Texas man James Miller received a reduced sentence after fatally stabbing his neighbor who allegedly tried to kiss Miller. In 2009, Joseph Bidermann was acquitted of murder for killing Terrance Hauser after stabbing him about 60 times; Hauser allegedly threatened to rape him.   

Michigan is now the 20th state to prohibit the gay/trans panic defense. The states include: California, Illinois, Rhode Island, Connecticut, Hawaii, Maine, Nevada, New York, DC, Colorado, New Jersey, Washington, Maryland, Oregon, Vermont, Virginia, New Mexico, New Hampshire, Delaware, Minnesota, and now Michigan.  

The Gay Panic Defense Is Inherently Sexist

The gay panic defense is inherently a sexist defense as it depends entirely upon the sex of the victim. A man could not involve the gay panic defense if the victim was a woman nor could a woman use the defense if the victim was a man (the defendant is usually male). The defense only works if the defendant and the victim are the same sex or at least the defendant perceives the victim as being the same sex and perceives that the victim was making a sexual advance.  

In fact, the gay panic defense makes no sense if applied to two persons of different sexes. It would be seen as a horrifying crime if John stabbed Susan multiple times merely because the John believed that Susan was flirting with him. Somehow though, the gay panic defense makes it okay or legally justified for John to stab Steven multiple times if John believed that Steven was the one doing the flirting.  

 The Gay Panic Defense Is Beyond Normal Self-Defense  

The gay panic defense is rooted in self-defense. A typical self-defense argument asserts that the defendant used reasonable force to protect themselves or others from harm. The gay panic defense involves “protection” from an unwanted sexual advance. However, most sexual advances are not harmful. It might be confusing or even embarrassing for a straight man to know that a homosexual is attracted to them, but it is no worse than a woman having to fend off catcalls from unattractive men.  

Moreover, self-defense requires the use of reasonable force. If the victim throws the first punch at the defendant, the defendant is justified in hitting back. The defendant is not justified in leaving the premises and coming back with an automatic rifle to kill everyone in the vicinity. In many instances, the gay panic defense is invoked to shield responsibility for the use of force that is definitely excessive, especially since the “harmful” conduct is harmless, such as an attempted kiss. A legal defense that justifies potential torture and intentional murder is not a defense worth keeping.  

Do I Need a Criminal Defense Lawyer?

A criminal defense attorney can help you build your case can represent you during all the phases of a murder or manslaughter trial. The emotional benefits include some sense of relief that your attorney is on your side.