Gay and Trans Panic Defence Prohibition Act 2018

The Democrats are aiming to force new legislation across America to banish the defence in gay murder and assault crimes known as “gay and trans panic”.  When using this defence the defendant claims that due to unwelcome homosexual advances on the part of the victim that so shocked and frightened the defendant that it induced a form of temporary violent insanity causing a psychotic reaction of exceptional violence.  Similarly a sexual approach or encounter with a trans-person where the defendant was initially unaware of the biological sex of the victim.  A similar defence has put forward in Australia where it was known as the homosexual advance defence (HAD) and in New Zealand, provocation by the victim has been used as a defence against murder charges.  In the UK such a defence has been recognised as the Portsmouth defence or the Guardsman’s defence and has been known about for some considerable time.

Australia and New Zealand no longer accept such provocation as a plausible defence against attack or murder and in the UK the Crown Prosecution Service states “the fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take."

Senator Edward J. Markey and Congressman Joseph Kennedy III have introduced the Gay and Trans Panic Defence Prohibition Act of 2018, which will amend title 18 of the United States Code.  Congressman Kennedy said, “Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defence, it is a hate crime”.  He further commented, “legal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual, and transgender neighbours should never have existed in the first place.  I am proud to introduce this legislation with Senator Edward Markey and believe that our colleagues will echo our urgency in ensuring hate does not live in our courtrooms.”

The “gay and trans panic” defence has previously been used when there is no doubt of the guilt of the defendant but is employed as a mitigating factor.  However, it does not have a record of widespread success as far as an acquittal is concerned but has been seen, in some cases, as sufficient cause to explain diminished capacity leading to a violent attack, which in turn serves to water down both the charges and sentences.  The fact that the courts have, in the past, accepted the explanation that just the fact that a person is gay or trans is sufficient reason to provoke a murderous attack would appear to be tantamount to suggesting that gay or trans people are regarded as less worthy and their lives less important. 

However, in another twist to the use of this defence, the case of James Miller of Texas who killed his neighbour Daniel Spencer and cited a defence very close to the “gay and trans panic” which may have served to highlight how a simple uncorroborated accusation can wholly change the way a perpetrator is sentenced.  James Miller and Daniel Spencer had only met twice and were neighbours who shared similar tastes in music.  Daniel Spencer invited James Miller to spend the evening drinking and listening to music.  Miller claimed that Spencer attempted to kiss him, which he rejected.  Miller then alleged that Spencer flew into a rage and attempted to attack him with a glass whereupon Miller stabbed him to death with a knife.  There were no witnesses.  Miller was convicted of criminally negligent homicide, a charge that carries a lighter punishment than murder or manslaughter.  The jury recommended that James Miller receive 10 years probation for the death of his neighbour.  The judge added the maximum six months in jail and required Miller to complete 100 hours of community service, and also made Miller pay almost $11,000 in restitution to Spencer's family. Daniel Spencer’s family insist that their relative was not gay, refuting James Miller’s version of events.  The case caused outrage amongst Gay Rights supporters as, regardless of Daniel Spencer’s sexual orientation, it appears to almost sanction James Miller’s actions as “understandable” due to the uncorroborated circumstances outlined by the defendant.

The Gay and Trans Panic Defence Prohibition Act of 2018 is predicted to be well received by a number of the States in America.  Unfortunately, there may be resistance by the “Bible belt” States where the Act may not have an easy path.

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