Michigan becomes 20th state to ban “gay panic” defense

LANSING, MI – Under a bill currently before the governor, it would no longer be legal to argue that a person’s sexual orientation justifies an assault on that person.

If Governor Gretchen Whitmer signs this bill, a person accused of a violent crime will not be able to try to reduce or avoid criminal liability on the grounds that they lost control and reacted violently because of the victim’s sexual orientation, gender identity or gender expression.

Michigan would be the 20th state in the U.S. to pass such a law banning this defense, according to the National LGBTQ+ Bar Association. The defense is commonly referred to as “gay panic” or “LGBTQ+ panic.”

“The policies this bill entails are something I’ve been focused on for quite some time, and for it to pass both the House and Senate is monumental,” said Livonia state Rep. Laurie Pohutsky, who introduced the bill.

“This bill, along with other bills we’ve passed this term, significantly expands legal protections for LGBTQ+ communities. The fight for safety isn’t over, but I’m proud to see how far we’ve come.”

Related: Victims’ sexuality can be used to justify crimes. Laws could put an end to this.

The bill was forwarded to the governor after passing along party lines in the state House of Representatives on Thursday, June 27, with Republicans voting against the bill.

It was not immediately clear how often that defense has been used in Michigan, whether successfully or not. The attorney general’s office did not immediately respond to a request for comment.

According to a study by W. Cartsen Andresen, a professor at St. Edward’s University in Texas, there were at least four cases in Michigan between 1970 and 2020 in which a defendant in a murder case invoked the “gay panic” defense.

The National LGBTQ+ Bar Association said it has tracked dozens of cases across the U.S. in which juries acquitted defendants based on the LGBTQ+ panic defense strategy. The crimes in those cases ranged from assault to murder.

Under the proposed law in the state of Michigan, it would not be justified for a person to use violence against another person simply because they know or are aware of the victim’s gender, gender identity, gender expression or sexual orientation.

Nor would such discovery or knowledge be admissible as evidence to prove reasonable provocation, to show that an act was committed in the heat of the moment, or to support a defence of diminished mental capacity.

The Michigan Department of Civil Rights (MDCR) released a resolution in April supporting the bill, saying the defense had been “used to excuse the most heinous crimes and reduce charges for violent crimes against LGBTQ+ people based on their gender expression and/or sexual orientation.”

“There is a historic legal defense based on irrational fear and prejudice against the LGBTQ+ community, commonly known as the ‘Gay Panic Defense.’ It is based on the morally offensive notion and repugnant implication that violent behavior toward persons based on their sexual orientation and gender identity can be excused and accepted under certain circumstances,” the MDCR resolution states.

One of the most notorious cases of this defense was the 1998 murder of Matthew Shepard, a gay student at the University of Wyoming. Shepard, 21, was brutally beaten by two men and left to die on the side of the road.

Attorneys defending one of Shepard’s killers argued that his client was triggered in part by unwanted sexual advances from Shepard and previous traumatic experiences with LGBTQ+ people. The judge did not allow the defense.

Equality Michigan and the Human Rights Campaign expressed their support for the bill last fall.

Other organizations signaled support for the bill, including the LGBTQ+ Section of the State Bar of Michigan, the National LGBTQ+ Bar Association, the American Association of University Women of Michigan, the Michigan League for Public Policy and the Michigan Coalition to End Domestic and Sexual Violence.