End “panic defense” for attacks on gays in Illinois

On October 6, 1998, Matthew Shepard met two men in a Laramie, Wyoming bar. After offering him a ride home, the men tortured Shepard. Beaten, burned, and comatose from a fractured skull, Shepard was tied to a fence — left for dead. So battered and broken was his body, the cyclist who found him initially mistook him for a scarecrow. He died days later.

One of Shepard’s murderers, Aaron McKinney, tried to excuse killing Shepard because he was gay and made a non-violent sexual advance. At trial, McKinney’s attorney told the court that “the homosexual advance of Mr. Shepard” was “significant” to the defendant because it “humiliated him in front of his friend.” Shocked by Shepard’s alleged pass, the lawyer explained, McKinney “left his body” and murdered Shepard in an act of involuntary rage.

What McKinney’s lawyer proffered is commonly known as a “panic defense.” So-called gay and trans panic defenses are used by criminal defendants accused of murdering lesbian, gay, bisexual or transgender persons, to seek more lenient punishments or to escape culpability for their crimes by blaming their victim’s sexual orientation or gender identity.

Illinois can end this shameful practice with SB 1761, which would prohibit the use of gay and trans panic defenses. The General Assembly should swiftly enact it.

LGBT persons are often victims of harassment and physical violence. Approximately three-quarters of LGBT persons report that they have been victims of verbal abuse. One-third of LGBT persons report that they have been victims of bodily harm. Hate crimes data reveals that LGBT persons suffer the highest rate of bias-motivated crimes per capita than any other group.

Given this, it is imperative that the state pushes back against the secondary victimization that occurs when a defendant assigns blame for a victim’s fate to their sexual orientation or gender identity.

Criminal defendants have a constitutional right to vigorously defend themselves and lawyers have a duty represent their clients zealously. However, they do not enjoy unfettered latitude to advance theories that demean victims or perpetuate false, stigmatizing narratives.

Indeed, at the heart of gay and trans panic defenses is the idea that individuals who do not conform to gender norms are abnormal and should be feared. They reinforce outdated notions that LGBT persons are mentally ill and predatory. They endorse the proposition that violence against LGBT people is excusable.

While more recent cases, like Matthew Shepard’s, have brought the controversy surrounding gay and trans panic defenses into the limelight, they have been used for decades. Since the 1960s, gay and trans panic defenses have been raised in at least 23 states. In Illinois, anti-LGBT defenses have been used at least five times, most recently in 2004.

Defendants in very recent trials have invoked panic defenses, including a 2011 California case involving the shooting death of a 15-year-old boy by a male classmate. Defense attorneys argued that the victim, Larry King, provoked his death because he asked his killer to be his Valentine. The jury was hung.

This condemnable practice has come under increased skepticism from the legal community. The American Bar Association unanimously endorsed a resolution in 2013 prevailing upon state legislators to ban gay and trans panic defenses. In 2014, California did just that. Lawmakers in New Jersey and Pennsylvania introduced similar measures. Illinois should heed the Bar Association’s call and lead the nation toward shutting down this harmful practice.

SB 1761 is an important piece of legislation that affirms the dignity and equal citizenship of LGBT Illinoisans. Illinois has pioneered LGBT civil rights. It was the first state to repeal its sodomy law, it was a leader on equal marriage, and it was at the forefront of advancing non-discrimination protections for LGBT persons. Now, it’s time for Illinois to make clear that LGBT persons’ mere existence is never provocation for physical violence.

Anthony Michael Kreis is a professor at Chicago-Kent College of Law, where he specializes in issues of LGBT equality and civil rights legislation.

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