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Bill would ban "panic defense" on attacks against LGBT victims

Hand holding rainbow LGBTQ flag
Stavrialena Gontzou

Proposals introduced in the Michigan Legislature last week would ban the so-called "LGBT panic defense" in Michigan.

State Rep. Laurie Pohutsky (D-Livonia) is backing a House bill that would forbid invoking a victim's sexual orientation or gender identity as a legal justification for committing a crime.

Pohutsky says it's a response to hate crimes like the murder of Matthew Shepard in the 1990s. Defense attorneys tried to argue Shepard provoked one of his killers into an uncontrollable panic when the Wyoming college student propositioned the man sexually.

Carsten Andresen, an associate professor of criminal justice at St. Edward's University, says he's tracked more than 300 cases nationwide dating back to the 1970s that involve the LGBT panic defense.

In some cases, attorneys suggested that discovering the victim was gay or transgender provoked the defendant into temporary insanity or reduced mental capacity that resulted in murder or assault.

“One of the biggest misconceptions in the public is that gay men or trans women are sort of up to something nefarious or that they are predators," Andresen said, "and that's what it plays off of."

In 2013, the American Bar Association called for the defense strategy to be banned. At least 16 other states have done so, according to the National LGBTQ+ Bar Association,.

Andresen believes more states should follow suit, although he acknowledged that lawyers often use homophobia or transphobia in a coded manner than can be difficult to legislate.

"There are going to be cases that sort of slip through the cracks," Andresen said. "There's going to be defense attorneys that know how to subtly advance these cases."

Federal data shows lesbian, gay, bisexual and transgender people are more likely than straight or cisgender people to be victims of violent crime. But the panic defense implies LGBT people are "lesser" victims, said Jay Kaplan, a staff attorney for the American Civil Liberties Union of Michigan.

"It kind of creates a second class of victim of hate crimes," Kaplan said.

Pohutsky's bill is paired with an identical Senate proposal introduced by Rosemary Bayer (D-Beverly Hills).

All the sponsors listed thus far for both bills are Democrats. Pohutsky, who is bisexual, acknowledged the proposals could face an uphill battle.

"I know for a fact, though, that there are some folks over on the other side of the aisle who are supportive," she said. "It's unfortunate that it's difficult to be vocal with that support right now."

Sarah Lehr joined WKAR in June of 2021 in the role of politics and civics reporter.
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