Michigan senators hears testimony on bill banning LGBTQ+ panic defense

A Michigan Senate committee took testimony Thursday on a bill that would bar the “gay panic” and “trans panic” defenses from being used in court.

The Senate Civil Rights, Judiciary, and Public Safety Committee heard from state Rep. Laurie Pohutsky (D-Livonia), sponsor of House Bill 4718 that would prohibit using a legal defense that would either partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity were to blame.

“Back in 2013, the American Bar Association issued a unanimous resolution calling on federal, tribal, state, local and territorial governments to ban the use of this defense,” testified Pohutsky, who is bisexual. “And just last year, both New Hampshire and Delaware became the 17th and 18 states in addition to the District of Columbia to do so. This would bring us up to No. 19.”

The American Bar Association has urged governments to take legislative action to end the practice, citing 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.

Pohutsky said the most notable use of the “LGBTQ panic defense” was in the trial of two men for the 1998 murder of Matthew Shepard, where the defendants said the discovery of Shepard being gay and their fear that he might make a pass at them led them to beat him and tie him to a fence after which he spent six days in the hospital and ultimately died. Although the defendants each ended up being sentenced to life in prison for the murder, the judge had to specifically prevent the use of the defense by lawyers for the accused.

“However, this defense is used much more contemporaneously against trans individuals, particularly black trans individuals in order to lessen the penalties for assaultive crimes against and murders of those communities,” said Pohutsky. “Violent crimes against the trans community have been on the rise over the last two years with the vast majority of those being against black trans individuals.” 

She said the defense is often used as a way to play on the prejudices of judges and juries in an effort to mitigate criminal penalties. 

“At its core, the defense asserts that crimes against the LGBTQ community carry less weight because we are inherently less human and therefore less valuable.”

State Sen. Jim Runestad (R-White Lake), one of two Republicans on the committee, said while he supported the bill in concept, he was concerned that it was too vague and needed what he called “limiting language” to prevent a  scenario where a person in the LGBTQ+ community could become involved in a situation such as a dispute at a bar, but their sexual orientation or gender identity was not the actual cause of the quarrel. 

“What so often I see here is unintended consequences that we think about these years later when these cases come back,” he said.

Pohutsky said she didn’t believe any such language was necessary.

“If someone is making a forcible advance on someone, then the forcible advance is the issue, not someone’s sexual orientation or gender identity and bringing that up in the case of a defense should not have any bearing on the actual circumstances of the so-called assault or any other crime that is perpetrated against somebody,” she replied.

Angie Martell, chair of the State Bar of Michigan LGBTQA Law Section, urged the committee to pass the legislation, saying the gay panic defense is “rooted in irrational, homophobic and transphobic fears and when employed communicates that violence against LGBTQ people is acceptable and that their lives are worth less than others.’

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

Martell added that as a Latinx LGBTQ attorney and the parent of adult LGBTQ children, this issue is a personal one for her.

“It terrifies me that this defense exists,” she said. “It terrifies me that my child or my children can be assaulted and murdered and there will be a defense based on who they were as a person with a protected status.”

Also speaking in favor of the bill was Emme Zanotti, director of advocacy and civic engagement at the Equality Michigan Action Network. She said it was important for the government to intervene on a “profoundly disturbing strategy” like the LGBTQ panic defense considering the government’s role in perpetuating propaganda research that dehumanized the LGBTQ+ community. 

“We often hear about the Red Scare, but we don’t hear a lot about the Lavender Scare when LGBTQ people were purged from government, from the military, from civil service in the 1940s and 1950s,” she said. “A lot of this rhetoric still permeates our social and political discourse today that teaches people in our society that we are less than right. LGBTQ people and trans women like me, we are tired of paying for people’s insecurities, their impulses, and their ideologies with our own lives,” she said.

When Pohutsky put forward her bill last year, it passed the House on a 56-53 party line vote, with every Republican who was present voting against it. While the committee did not take a vote on Thursday, it appeared the majority Democrats were in favor of passing it on to the full Senate in the near future.