Legislation to end ‘gay panic’ defense in Michigan gets House hearing

Beaten. Blinded. Bludgeoned.

According to the American Bar Association, LGBTQ+ people have been subjected to an assortment of violent crimes — but those actions have been successfully defended in courts, lessening or even throwing out criminal charges when the assailant claimed the victim’s sexual orientation or gender identity led to their violent actions.

That’s commonly called the “gay panic” or “trans panic” defense. 

The majority of states allow for this defense, but Michigan lawmakers heard legislation Tuesday to bar knowing or learning a person’s sexual orientation or gender identity as a rationale for use of force against them.

The American Bar Association in 2013 advised federal and local governments to bar legal defenses that, “seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.” 

In the advisement, the association uses examples that were argued in court such as an 18-year-old getting bludgeoned to death with a fire extinguisher when her attacker realized she had male anatomy and a 15-year old boy being shot in front of his classmates by a fellow student for wearing a dress and heels the day prior.

State Rep. Laurie Pohutsky (D-Livonia) talked to the House Criminal Justice Committee about her bill, HB 4718, to bar “gay panic” and “trans panic” defenses saying they can be used to prey on the biases of juries and some judges.

“At its very core, this defense [makes] crimes against the community carry less weight, because we are inherently less human, and therefore less valuable,” said Pohutsky, who is bisexual. “What I’m asking the committee to do today is to reject that notion.”

The panel heard testimony on Tuesday, but did not vote on the bill.

The defense has not been used often, one researcher out of St Edward’s University found, citing 104 cases across 35 states where defendants attempted to use a “gay panic” defense between 1970 and 2020. In his research, Michigan ranked sixth in states for highest concentration with four cases.

Even still, the American Bar Association called such legal; defenses, “surprisingly long-lived historical artifacts, remnants of a time when widespread public antipathy was the norm for lesbian, gay, bisexual, and transgender (‘LGBT’) individuals.”

Regardless of the scale of the use of the defense, Equality Michigan’s director of advocacy, Emme Zanotti, said allowing the defense sets a dangerous precedent for violence against LGBTQ+ Michiganders and the defense would never work if it was a member of the LGBTQ+ community claiming it against a straight person.

“Killing or assaulting someone simply because they aren’t your type, or it’s not your ideology is an incredibly dangerous precedent to set,” Zanotti said. “The ability and attempt to use the panic defense tactic only serves as additional fuel to the fire of those currently harboring provoked hostility towards the LGBTQ community.”