Minnesota must ban the 'gay panic' defense

In 1998, Matthew Shepard, a 21-year-old college student, was violently beaten and left to die by the side of a road near Laramie, Wyo. Rescuers took him to a hospital where he died six days later from profound injuries.

The two suspects in the attack were arrested and charged with first-degree murder.

The defense lawyer claimed that one of the attackers was driven to temporary insanity by alleged sexual advances from Shepard.

This is known as the gay and trans panic defense. This legal argument asks a jury to rule that a same-gender sexual advance is a sufficient provocation to excuse a defendant's violent reaction, even murder. It is not a free-standing defense to criminal liability but a legal tactic to support other defenses.

The two perpetrators were convicted and are serving two consecutive life sentences. But the gay and trans panic defense gained notoriety — and popularity. It has been used in hundreds of cases across the country to defend people accused of attacking and even murdering lesbian, gay, bisexual and transgender (LGBT) people.

The panic defense is used in three ways to reduce a murder charge of to lesser charges of manslaughter or justified homicide.

The insanity or diminished capacity defense: The victim's sexual orientation or gender identity is to blame for triggering the defendant's panic reaction.

The provocation defense: The victim's "nonviolent sexual advance" induces the defendant to kill them, behavior which is not illegal or harmful but is only considered "provocative" when it comes from an LGBT person.

The defense of self-defense: Because of the victim's sexual orientation or gender identity, the victim must have been about to cause the defendant serious bodily harm, and the attacker is justified in using violence.

The "gay panic disorder" was removed from the "Diagnostic and Statistical Manual of Mental Disorders" by the American Psychatric Association in 1973, yet legal defense teams still use it.

In 2013, the American Bar Association (ABA), representing 200,000 lawyers, urged "federal, Tribal, state, local, and territorial governments to take legislative action to curtail the availability and effectiveness of the 'gay panic' and 'trans panic' defenses. These defense strategies seek to excuse the crimes by saying that the victim's sexual orientation caused their assailant's violent reaction to them."

Since 2013, eleven states have banned the defense — but it remains legal in Minnesota.

The ABA again urged the ban in 2020: "This legally sanctioned discrimination against one's sexual orientation and gender identity must cease."

At the federal level, Sen. Edward Markey and Rep. Joseph Kennedy III unsuccessfully introduced the Gay and Trans Panic Prohibition Act in 2018 and again in 2019.

Why is this important?

The LGBT community comprises about 5% of the U.S. population, according to the Williams Institute, UCLA School of Law. However, the FBI reports that nearly 20% of hate crimes are directed against LGBT individuals and the proportion continues to rise.

A small minority of people is vulnerable to extremely violent attacks.

In the aftermath of World War II, global leaders created the Universal Declaration of Human Rights, affirming the equality of all people, everywhere, based on their immutable personal characteristics of race, religion, ethnicity, national origin — and sex.

Countries, laws, organizations around the world and the Minnesota Human Rights Act define sex to include sexual orientation and gender identity. We are all guaranteed equality before the law because of, and even despite, who we are.

The gay and trans panic defense is dangerous.

Yet it is legal in 39 states, including Minnesota.

It has been used to justify murder nearly 200 times around the country.

It has resulted in reduced sentences or acquittals for nearly half of those murders.

Bills are pending now in the Minnesota House and Senate to ban this defense: SF 1512 and HF 1648.

We urge Minnesotans to ban this defense in memory of Matthew Shepard and all others who have been murdered simply because of who they are — and to affirm that we will not tolerate hate.

Scott Dibble, DFL-Minneapolis, is a member of the Minnesota Senate. Athena Hollins, DFL-St. Paul, is a member of the Minnesota House. Ellen J. Kennedy is adjunct professor of law and executive director, World Without Genocide, at Mitchell Hamline School of Law.