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The “Gay Or Trans Panic Defense” Could Be On The Way Out


It is a little-known fact that, today, anyone charged with assault or murder can argue that their charges should be reduced because they were simply reacting to their victim’s gender identity or sexual orientation in all but three states (California, Illinois, and Rhode Island). This criminal defense is known as the “gay or trans panic” defense, and it effectively blames the victim for the crime.

However, it may not be available for long: Although states have control over their own criminal laws, several federal lawmakers are now introducing a federal ban on the defense, hoping that, by outlawing its availability in federal courts at the federal level, they will set a precedent for each individual state to ban the possibility of criminal defendants relying on its use.

How Do These Defenses Work?

The gay panic defense has long been available as part of a “temporary insanity” defense in response to unwanted homosexual advances from someone else. Defendants would allege that they found the advances so offensive and frightening that went into an almost “psychotic” state of violence. The trans panic defense is similarly used in cases involving assault, manslaughter, or murder of a transgender individual, with the defendant claiming that they experienced the same temporary, violence insanity after engaging in sexual relations with the individual while being unaware of their actual biological sex.

Historically, the defense has allowed criminal defendants to have first-degree murder charges downgraded to manslaughter convictions. More recently, a man who reportedly beat a transgender woman to death received a 12-year prison sentence for manslaughter after claiming that he was launched into a “blind fury” after finding out the victim was transgender.

Implicit Messages & Concerns

The concern is that the availability of this defense is sending a message throughout society that LGBT individuals somehow matter less than everyone else does when it comes to valuing life.

Still, not everyone agrees with changing the law: Some state lawmakers have expressed concerns that passing laws banning the defense could end up resulting in jurors not being provided with all of the necessary details in a particular case.

State-Level Bans

In addition to the bans that exist in California, Illinois, and Rhode Island, additional ban bills have been introduced in both New York and New Jersey. While not technically codified in the Penal Code, in states like New York, they have been used in conjunction with New York’s “extreme emotional disturbance” defense to murder in the second degree.

Contact an Experienced Defense Attorney

Phillip J. Murphy has more than 25 years of experience successfully defending clients throughout New York and New Jersey. If you have been accused of a serious or minor crime, contact our office today for a free consultation.





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Phillip J. Murphy,
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Free Consultations Calls Answered and returned 24/7 Phone: (845) 639-6600 Fax: (845) 639-6620

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Phillip J. Murphy, Attorney At Law is located in New City, New York and serves clients in and around New York, New Jersey & Connecticut. Contact our experienced criminal defense law firm.
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