06. Gay Panic Defense

Snarky Opener (0:00)

Okay, so as if being gay wasn't exhausting enough. Now we have to worry about essentially being legally hate-crimed?

Give me a fucking break.

Episode Introduction (0:28)

Hello, my LGBTQuties, and welcome back to another episode of A Jaded Gay. I'm Rob Loveless, and today I'm actually a non-jaded gay. And I feel like it's been a while since I've said that.

But yeah, lately, things have just been seeming a little more manageable. You know, I recently went back to the office a few days a week.

So, it's kind of nice to have that separation between work and being at home. And I'm just feeling more inspired. You know, I've started writing again, I've been reading a little bit more, getting ready to start gardening outside.

The weather's getting nicer. So yeah, I've been doing okay. And I hope you guys are too.

Gay Panic Defense (0:59) 

And if you're not doing okay, I'm sorry to hear that because this episode definitely is not going to help you.

We are talking about the gay panic defense today, which is absolutely fucking terrifying.

But before we really pull off the band-aid and just open the wound of trauma, let's do our tarot for the episode.

Tarot (1:15) 

Okay, so we drew the Four of Swords in reverse. Now, the Swords suit is one that's a little bit more complicated for me to understand. There's a lot to it.

Starting off basic, it's tied to the element of air, and that's representative of more masculine energy. So again, think of being more action-oriented. And whenever you pull a card in the Swords suit, it's typically symbolic of thoughts, ideas, and the words you speak, as well as written communication.

And for me personally, while it's a complicated suit to understand that I struggle with a little bit, it's actually tied to Gemini, Libra, and Aquarius, which, you know, I'm a Gemini myself. So, I should hone in on this more since it is kind of my astrological suit.

But anyway, in getting to the meaning of the card. In numerology, the number four is tied to structure and stability. And the overarching meaning of this card is restlessness and avoiding the time to self-reflect on ourselves.

So, this card upright, it shows a person lying down with three swords above them, and it looks like the person sleeping, or could even be that they've passed away, and they're in restful, you know, eternal slumber.

But the whole point of that is that it's supposed to be that they're taking the time to reflect upon their accomplishments. The three swords above them represent the accomplishments they've achieved. And they're taking that time to reflect and appreciate what they've achieved.

But we drew this card in reverse. So basically, it could be suggesting that we are pushing ourselves way too hard. And we might be opposed to stopping once we've got momentum going.

But we need to trust that the true way to sustain productivity in the long term is through finding our inner peace. And we need to do that by reflecting on ourselves and taking the time to listen to ourselves and see what we need.

And this card could also be a warning that we're teetering on the edge of burnout and that we might be pushing ourselves too hard. So, we really need to balance our physical and mental output.

And you know, this card can also suggest that we're frustrated with the lack of progress in our lives. So, you could think of that literally tied to, you know, progress towards a relationship or a career goal or something like that.

But as I pulled this card and know that the topic for today is the gay panic defense, I'm really kind of taking it as a way that, you know, me personally, I'm frustrated by the lack of progress I've seen in LGBTQ+ protections.

And I think through seeing that lack of progress and the frustration that we get from that, sometimes it can beat us up where we feel like we need to really prove ourselves that we are worthy of equality.

And it's unfortunate that we do have to do that because the way we're treated can make us feel like second-class citizens. But by pushing ourselves too hard, we're actually not helping our movement go forward.

We're setting ourselves back personally because we're teetering on the edge of burning out.

So, I think it's important to acknowledge the frustrations we have, but also take the time to recharge ourselves so that we can actually be productive, and continue pushing the fight for equality forward for the long term in a productive way.

So, there's our tarot for the day. Not that reassuring, but what are you going to do?

Trans Panic Defense & LGBTQ+ Panic Defense (4:03)

Anyway, like I introed at the beginning of the episode, today's going to be a more serious topic. And I know that you know, in the past, we've kind of focused mostly on emotional well-being, especially tied to relationships and dating.

But today, this is going to kind of change course and really focus on our physical well-being and our safety.

And part of the reason I wanted to bring up this topic is because I feel that there are a large number of people, both gay and straight, who really are not familiar with the gay panic defense or may not have heard that.

And it's alarming because, honestly, this is an issue state by state. So, depending where you live, you might be protected and you may not be.

So, before we go into the history and the definition of what this is, it's important to note that there's actually two separate defenses. There's the gay panic defense and then the trans panic defense.

But more recently, it's been grouped together as the LGBTQ+ panic defense.

What is the Gay Panic Defense? (4:54)

So, the American Bar Association defines this as a legal defense that legitimizes and excuses violent and lethal behavior against members of the LGBTQ+ community.

And furthermore, the LGBTQ+ Bar states that it's a legal strategy which asks a jury to find that a victim's sexual orientation or gender identity is to blame for the defendant's violent reaction, including murder.

So, to break this down into a more simple concept, basically, the gay panic defense is a framework of the temporary insanity defense.

And it tries to argue that the defendant resorted to violence or some sort of crime against a member of the LGBTQ+ community because of unwanted same-sex sexual advances. Now, for me personally, this is terrifying for a few reasons.

Number one, it's someone's word against yours. So how many times have you, you know, seen a meme on social media or heard the saying, where a straight guy's like, oh, I don't care if you're gay, as long as you don't hit on me.

Straight men can be so fragile sometimes and can interpret that just a member of the LGBTQ+ community existing as an unwanted sexual advance.

So basically, just because if they feel uncomfortable of somebody's existence, they can use this defense as a legitimate means to diminish their, their sentencing in a court case.

Number two, it's discrimination plain and simple. I mean, they're blaming our sexuality for the reason why we're the victim of a hate crime. And this doesn't happen for straight people.

Because think about how many women out there receive unwanted sexual advances from straight men. You know, whether they're out socializing with friends, or just getting coffee, or whatever.

How many times has a straight man felt that he has the right to go forward and just drop a compliment, be a little aggressive in his approach, really try to get her phone number, or buy her drink, or whatever?

I mean, in my mind, that could be considered an unwanted advance. So, if it's okay to kill gay people because you're uncomfortable with their existence and consider that to be a same-sex sexual advance, then is it okay for women to start violently attacking straight men who come on to them?

I mean, think about it. Isn't that a pretty similar concept? But no, because that would be something that would go against the straight man, and that's not okay.

But when you're a minority because of your sexual orientation, it's a whole different ballgame. And you're fair game.

And, for me, the third reason why this is terrifying is because, in October 2020, Science Advances published a study that found that members of the LGBTQ+ community are four times more likely to be victims of violent crimes compared to their straight counterparts.

So, looking at those numbers, the LGBTQ+ community faced about 71 violent victimizations per 1000 persons a year. Meanwhile, straight people only faced about 19 violent victimizations per 1000 persons a year.

So again, we, as members of the LGBTQ+ community, are much more likely to be victims of violent crimes. And there's a good chance that, depending on where we live, the perpetrator could get away with it because of this panic defense.

So, this really just adds another layer to that concept of not feeling like you're protected in the society you live in. And it's really interesting to me how this panic defense came to be.

So, let's take a little look at the history here.

The History of the Gay Panic Defense (7:56)

So, the defense was originally created from a combination of legal defenses in the mid-19th century and a mental disorder identified by a psychiatrist named Edward J. Kemp.

Now, in 1920, Kemp coined the term homosexual panic and described it as a condition of panic due to the pressure of uncontrollable perverse sexual cravings. And by perverse sexual cravings, you know, he means gay sexual cravings.

So basically, I mean, think about it. At this time, you know, homosexuality was way less accepted than it is today.

And so, for men who were experiencing same-sex attractions, they kind of went to a state of panic, recognizing those attractions because obviously, that was something that was not socially acceptable at the time.

And so, some of them suffered psychotic symptoms such as hallucinations and delusions. Now, Kemp classified this homosexual panic as an acute, pernicious dissociative disorder.

And I'm not a scientist. So, I am really proud that I think I pronounced that correctly.

Anyway, basically, that's fancy talk, meaning it involves a disruption in typical perception and memory functions. And again, like I said, this was back in 1920, when homosexuality was really not understood and definitely not accepted.

And actually, back then, it was considered a mental illness. But it's important to note that this condition, homosexual panic, is no longer included in the Diagnostic and Statistical Manual of Mental Disorders today, thankfully.

Now, like I said, Kemp said that men who are experiencing this homosexual panic were suffering those symptoms of hallucinations and delusions.

And he said that the possible reason for the onset of this was by spending copious amounts of time with members of the same sex in a confined or limited atmosphere.

But it is important to note that the onset of this condition was not attributed to unwanted sexual advances. Instead, Kemp stated that it was actually caused by an individual's own aroused homosexual cravings.

So again, it's not that these men were having panic and suffering these symptoms because gay men were coming onto them. It's because they recognized these attractions within themselves, and that frightened them.

And it's also important to note that later studies that kind of worked off of Kemp's findings did also conclude that men who suffered from this alleged homosexual panic were not aggressive. They didn't show signs of aggression or anything.

Again, it went back to the symptoms of just extreme stress and psychotic symptoms such as hallucinations and delusions around themselves. However, that disorder, along with previous panic laws, was somehow manipulated and turned into this gay panic disorder.

So, if you think about it, what they're alleging is that someone is around a gay person too long, they feel uncomfortable, they feel like maybe the person is coming on to them, and suddenly they lose control.

They're hallucinating, they're, they're facing delusions, they're experiencing this panic. And they feel that their only means in that situation because of that loss of control is to essentially violently attack the gay person.

Kind of similar to, if you think about it, like, the husband comes home, and he finds his wife in bed with another man, and he's in such a blind rage that he kills both his wife and the other man she's cheating on him with.

So, it's kind of that mindset, but focused upon gay people and being uncomfortable being around them.

And again, I just want to clarify that that homosexual panic disorder was at one point considered a diagnosable medical condition.

However, the gay panic defense implies only a temporary loss of self-control.

How Does the Gay Panic Defense Work? (11:06)

So now that we understand how this legal defense came to be, how exactly does it work?

And I'm actually going to read this verbatim from the LGBTQ+ Bar website, um, because it's really good information and kind of really simplifying how to understand this, this defense.

So, the LGBTQ+ Bar says that traditionally, this panic defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide:

So, number one, defense of insanity or diminished capacity.

The defendant alleges that a sexual proposition by the victim due to their sexual orientation or gender identity triggered a nervous breakdown in the defendant, causing an LGBTQ+ panic.

And, like I had explained earlier, this defense is based on an outdated psychological term gay panic disorder, which was debunked by the American Psychiatric Association and removed from the DSM in 1973.

Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up.

Number two, defense of provocation.

The defense of provocation allows the defendant to argue that the victim's proposition sometimes termed a nonviolent sexual advance, was sufficiently provocative to induce the defendant to kill the victim.

Defendants claiming a provocative advance stigmatized behavior, which on its own is not illegal or harmful, but is only considered provocative when it comes from an LGBTQ+ individual.

And lastly, we have defense of self-defense.

Defendants claim they believed that the victim, because of their sexual orientation, or gender identity and expression, was about to cause the defendant serious bodily harm.

This defense is offensive and harmful because it argues that a person's gender or sexual identity makes them more of a threat to safety.

In addition, LGBTQ+ panic is often employed to justify violence when the victims' behavior falls short of the serious bodily harm standard or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed.

So, there you have it, the three ways this defense is typically used in court. But just exactly how successful is this?

Real Life Gay Panic Defenses (13:11)

Well, according to the LGBTQ+ Bar, juries have acquitted dozens of murderers of their crimes through a defense team's use of this panic defense strategy.

And as recently as April 2018, an LGBTQ+ panic defense was used to mitigate a murder charge. And so, they actually did provide a few notable cases on their website.

And there's a few that really jumped out to me that I'm going to read through here.

The first one takes place in 1995. Scott Amedur appeared on the Jenny Jones Show as part of a segment on secret admirers. His friend, Jonathan Schmitz, was invited to appear on the show.

And during that filming, Scott confessed his attraction to him. Jonathan was surprised and embarrassed by this, and three days after the show, he drove to Scott's house and shot him twice in the chest, killing him.

However, he claimed he suffered diminished capacity due to gay panic disorder, and the jury ended up reducing his charge from premeditated murder to second-degree murder.

Next, in 2001, Ahmed Dabarran was struck over the head a dozen times by Roderiqus Reshad Reed and died from his injuries.

Reed's attorney claimed he acted in self-defense due to Dabarran's unwanted sexual advances. However, the medical examiner testified that Dabarran was asleep at the time of the attack.

Despite this and Reed's confession, the jury acquitted him of murder. Next, in 2008, Joseph Biederman stabbed his neighbor Terrance Hauser 61 times.

Biederman claimed he woke up with Hauser holding a sword against his neck and trying to sexually assault him and that he had acted in self-defense.

In fact, he claimed that he was in such a panic the only way he could escape was to stab Hauser 61 times. A bit excessive if you ask me.

However, evidence from the scene showed few signs of a struggle, but the jury still acquitted Biederman of first-degree murder.

And more recently, in 2015, Daniel Spencer was stabbed and murdered by his neighbor Robert Miller. Miller claimed that he rejected a sexual advance from Spencer and acted in self-defense when Spencer became agitated but physical evidence disproved his claim that he was ever in danger.

Still, Miller's conviction was mitigated from murder to criminally negligent manslaughter. And again, that's just a sampling of some cases that the LGBTQ+ Bar highlighted.

And I'm sure there are many more out there.

No Federal-Level Protections from the Gay Panic Defense (15:24)

And even more alarmingly, I feel like I've said that expression like 100 times already, but this episode just gets scarier and scarier.

The fact that this type of defense is legal, it's horrifying, because sexual orientation is a huge motivator for hate crime incidents.

In fact, in 2019, there were 1,656 recorded hate crimes against people for their sexual orientation and gender identity, which made up a combination of 18.8% of motivation in single-bias hate crime incidents.

And it's estimated that one in five lesbian, gay, and bisexual people living in the United States will experience a hate crime in their lifetime. And what's worse is that there are no federal laws protecting us from this.

And while it's scary that we, as members of the LGBTQ+ community, are more likely to face a hate crime or a violent attack, what's even more horrifying is the fact that there are no federal laws that are banning their attackers from using the gay panic defense.

In 2018, Senator Edward Markey and Representative Joseph Kennedy III, both Democrats from Massachusetts, introduced two bills.

One was to ban the gay panic defense, and the other was to ban the trans panic defense, and this would be at a national level. However, both bills ended up dying in the committee.

And again, in June 2019, the bill was reintroduced in Congress as the Gay and Trans Panic Defense Prohibition Act of 2019.

Now, this act would prohibit a federal criminal defendant from asserting as a defense that the nonviolent sexual advance of an individual or perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense.

However, just like in 2018, the bill was struck down at the end of 2020 after being sent to the committee. However, in April 2021, the bill was reintroduced.

But I haven't been able to find anything online to see what the status of that is at. Obviously, you know, legislature can be kind of slow-moving, even if it's something pressing. So, we'll just have to stay tuned and see what's what with this.

But since we don't have those protections from a federal level, we have to rely on the states, the states that we live in to commit to protecting us.

Some State-Level Protections from the Gay Panic Defense (17:24)

However, while we're relying on protections from a state level, as of recording this, there are only 16 states that have banned this defense.

So, just going through the list here, we have:

• California, they banned the gay panic defense in 2014
• Illinois banned in 2017
• Rhode Island banned it in 2018
• Connecticut banned in 2019
• Hawaii banned in 2019
• Maine banned in 2019
• Nevada banned in 2019
• New York banned in 2019
• New Jersey banned in 2020
• Washington DC banned in 2020
• Washington banned in 2020
• Colorado banned in 2020
• Virginia banned in 2021
• Maryland banned in 2021
• Oregon banned in 2021
• Vermont banned in 2021

So those are the 16 states that, if you live in one of those states and you're a victim of a hate crime or violent crime, at least you're safe from your attacker using the gay panic defense as a legitimate means to justify their actions.

Now, there are a few additional states that have introduced legislation and are considering banning the gay panic defense. And we have:

• Georgia, which introduced legislation in 2018
• Wisconsin, considering banning in 2019
• Pennsylvania in 2020
• Texas in 2020
• Florida in 2021
• Iowa in 2021
• New Hampshire in 2021
• New Mexico in 2021
• Minnesota in 2021
• Massachusetts in 2021
• Nebraska in 2021

So again, it's great that at least while we are not federally protected, there are some states that are making movements. But that is such a small fraction compared to the entire country.

So, if you're somebody who is not living in one of those 16 states I mentioned earlier that have banned the gay panic defense, then the gay panic defense is still considered to be a legal defense strategy in court.

And again, like I said earlier, this is frustrating because, you know, for me, personally, I'm educated, I went to college, I have a master's degree, I bought my house at 25 years old, I have a career, I pay taxes, I invest.

You know, I'm a published author, I'm this and that. Despite all these things, I'm still viewed as less than, and it's evident that I'm not protected.

I'm more likely to be hate-crimed, I'm more likely to face violent crimes, and I live in Pennsylvania so great that they've introduced legislation or considering it, but ultimately, if I were to experience an attack like this, ultimately, my attacker could get away with it by implementing the gay panic defense.

And, and what's even more exhausting is since this is such a slow-moving at the federal level, it's once again up to us the LGBTQ+ community to protect ourselves when it seems like nobody else is.

Efforts to Ban the Gay Panic Defense (20:11)

So luckily, there is some work being done, though, following the American Bar Association's resolution in 2013, the LGBTQ+ bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.

But we also have to do our part. We need to step up, we need to contact our elected officials and let them know that we are not okay with this and that we are urging them to take action to ban the use of the gay panic defense.

So, after listening to this episode, I'm encouraging you to do a few things to take action:

One, share this podcast episode with everyone you know.

And I don't mean this in a self-promotion way. I mean it because my family, they had no idea that this was a thing. They didn't realize that the gay panic defense existed.

And it's really important to bring in straight allies to realize that there are still a lot of ways that we are not safe and not protected as members of the LGBTQ+ community.

You know, back in 2015, when marriage equality passed, that was great, but I think for a lot of straight people, they're wearing rose-colored glasses.

They see that marriage equality passed and that same-sex marriage is legalized. And they think everything's fine, but they don't recognize there are so many issues. You know, marriage equality was just the tip of the iceberg.

There are still so many inequalities that we face on a day-to-day basis that affects our emotional well-being, but especially in this case, our physical well-being and our safety.

So, share this with your friends, share this with your family, gay, straight, whoever. Share this so that people are aware that this is an issue out there.

Number two, I want you to go to usa.gov/elected-officials to find information on how you can contact your elected officials, from the federal level all the way down to your local level.

You know, the site is great. They include tons of links to directories so you can figure out exactly who to contact and what their contact information is whether phone, email, whatever.

But check it out, find out who your officials are, send them emails, call them, leave voicemails, but let them know that the LGBTQ+ panic defense needs to end.

And let them know that equality under the law should apply to the victims of hate crimes as well.

And lastly, be sure to support organizations that work to protect and uplift the LGBTQ+ community.

Like the LGBTQ+ Bar or the American Bar Association's Commission on Sexual Orientation and Gender Identity.

These sites have a lot of great resources, there's initiatives to get involved, there's more information to help you understand your rights and protections. So, check it out and get involved.

Episode Closing (22:30)

And again, going back to the tarot reading, we do need to be mindful that this is something that is extremely frustrating and exhausting.

And you know, as we know, from the trauma we face as kids growing up gay in a straight man's world, from what we face on a day-to-day basis in society, it's exhausting. And we need to check in with ourselves to see where we're at.

Again, what I listed here are some simple actions that we can all take and that we should all take. But we need to check in with ourselves to make sure we're okay.

So, like I said, share this episode, get in contact with your elected officials, but then take the time to check in with yourself. You know, the path to equality, it's a long journey, and it's not going to happen overnight.

There are so many instances out there where we are treated like second-class citizens and have to defend ourselves. And it is exhausting.

So, we need to make time for ourselves and see where we're at. Because if we allow ourselves to be exhausted and burnt out by this, then we're not going to be able to sustain our path forward to achieving equality.

So, we need to understand that while we're frustrated with the lack of progress, we can be the change that we need to see in the world. And our voices do matter.

But we can't just do that on our own. We can't be the one person that's shouting from the rooftops saying what we need and how we need to be protected.

We need to lean on the support of others, our friends, family, our community members, both gay and straight, to get on board because this is something that we can't just carry on our own shoulders individually.

Like the tarot card said, that's how we get burnt out. And if we're burnt out, we're never going to achieve our goal. We need to understand that we can ask for help and ask for support and understanding because there are strength in numbers.

And that's a more productive way to achieve the goals we want to and move forward and stay motivated.

Connect with A Jaded Gay (24:08)

So, thank you for listening.

I know this was definitely probably a very uncomfortable episode to listen to. It's scary to think about, but we can make a change.

And remember, every day is all we have, so you got to make your own happiness.

Thanks for listening everyone, and I'll talk to you next week.

Mmm-bye.

Outtake (24:49)

So, basically, just because if they feel uncomfortable of somebody's existence, they can use this panic defense as a legitimate means to hopefully get off.

Oh, dirty.