What Is The “Gay Panic” Defense And How Is It Used?

There are still lingering homophobic or anti-gay sentiments in our society. That is most clear in the way we treat hate crimes in court. Those who are accused of committing a violent crime — even murder — against members of the LGBTQ community sometimes use the “gay panic” defense in order to have the charges made against them reduced or dismissed. Sometimes, it actually works.

Now LGBTQ activists are fighting to make these insane defense strategies illegal throughout the United States — and they’ve already succeeded in at least eight states. 

New Jersey could soon become the ninth state to ban the gay panic defense after New York Governor Andrew Cuomo signed a bill doing the same only this past July — a measure that coincided with the Stonewall Uprising’s 50th anniversary. 

The gay panic defense generally uses already existing state laws. These laws are often used to reduce a murder charge to a manslaughter charge — but this is dependent on the crime being committed during a “heat of the moment” reaction to a legitimate, and potentially dangerous, provocation. When the victim is LGBTQ, the defense will try to make the case that the defendant acted in the heat of the moment after discovering the victim’s homosexuality or gender identity. 

The New Jersey Assembly has already approved NJ A1796 (18R) in a 73-0 vote.

It reads: “A provocation is not objectively reasonable if it is based on the discovery of, knowledge about, or potential disclosure of the homicide victim’s actual or perceived gender identity or expression, or affectional or sexual orientation, including under circumstances in which the victim made an unwanted, non-forcible romantic or sexual advance toward the actor, or if the victim and actor dated or had a romantic or sexual relationship.”

The new law was agreed upon after the details of a Cliffside Park case in which the defendant attempted to use the gay panic defense to justify a brutal murder were argued. The bill was initially introduced in 2014 by former Assemblyman Tim Eustace. It has taken this long for it to see the light of day, and only because LGBTQ activists started to put more pressure on the lawmakers responsible for stalling the bill. 

The bill cannot be passed into law until a few additional things happen: first, it must undergo a Senate committee hearing. Then, it must be passed by the New Jersey Senate. Finally, New Jersey Governor Phil Murphy must sign it into law. 

Category: Law