National Pulse

More lawmakers are considering banning gay and trans ‘panic defenses’

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Anthony Michael Kreis, a visiting assistant law professor at the Chicago-Kent College of Law, has consulted with legislators in some of those states and helped write the Illinois statute that became law in 2018. He says the bans may have currency right now because major LGBTQ civil rights struggles—marriage and employment discrimination—are being won in some jurisdictions.

“I think of this as … the next generation of LGBTQ rights issues,” says Kreis, who studies the law’s treatment of LGBT people and other vulnerable groups.

High-Profile Incidents

Woods says not all of these bills will, or should, necessarily look alike. Because there are different ways to use gay or trans panic as a defense, he recommends that jurisdictions adopt language that addresses the way they’ve been used locally.

Kreis says he didn’t have to do too much of that kind of tailoring on the Illinois statute. Initially, he says, he was working on a refined version of the California law’s language. One goal was to make it clear that the law would not take away access to self-defense in general, or other defenses.

To do that, backers of the bill had to address some misconceptions about what a gay panic defense is. Kreis says the media sometimes confuse the issue by reporting that a defendant used a gay panic defense when that person was really arguing self-defense in a situation that happened to involve a same-sex relationship or encounter.

In the spring of 2018, for example, headlines screamed that a gay panic defense permitted James Miller of Austin, Texas, to receive a sentence of 10 years of probation and six months in jail for stabbing Daniel Spencer to death. Miller’s attorney argued that Spencer did make a pass at Miller, but Miller stabbed Spencer only after Spencer attacked him physically—a claim of self-defense that doesn’t rely on panic, rage or disgust created by a same-sex pass.

To address that kind of confusion, Kreis says, backers of the bill had to talk it through with legislators, assuring them that the bill wouldn’t ban self-defense claims. In this, they were helped by the fact that there was no similar high-profile case in Illinois at the time. “These things are so often very charged that it’s hard to have the conversations in the moment,” he says. “We weren’t reacting to any immediate incident. So I think that was helpful for the legislative process.”

It worked—the Illinois legislature not only passed the bill but passed it unanimously, which Kreis says was a first for any LGBT civil rights legislation.

In California, McInerney’s mistrial helped add impetus to that state’s law banning gay and trans panic defenses that was passed in 2014. By then, however, it was too late to apply it to McInerney: He’d pleaded guilty to second-degree murder before he could be retried. He is scheduled to be released from prison when he’s 38.

Meanwhile, the Ventura County Star reported in June that King and McInerney’s former school hasn’t forgotten the experience. E.O. Green’s current principal said school administrators responded by bringing back school clubs in an attempt to give every student a place to belong. Since 2017, that has included Prism, a gay-straight alliance club.

In 2018, the 10-year anniversary of the shooting, Prism won a national award for Gay-Straight Alliance of the Year.


This article was published in the January-Februrary 2018 ABA Journal magazine with the title "Stop the Panic."

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