Delaware bill would ban ‘gay panic’ defense

First published Thursday, June 15, 2023 in the Washington Blade.

Delaware may soon become the 16^th state to ban the LGBTQ panic defense, in which defendants claim they panicked after learning someone was gay or transgender and injured or killed the victim. 

It’s been used five times in Delaware and more than 400 times across the country, said St. Edward’s University professor W. Carsten Andresen, who tracks uses of the defense. The defense is usually used so that defendants can have their charges lessened – often from murder to manslaughter.

If Delaware House Substitutive Bill 1 passes, defendants can’t use that defense to be acquitted of their crime or get reduced charges. 

“This defense is used by defendants to justify violent acts against LGBTQ individuals by claiming that their sexual orientation or gender identity poses a sudden threat to their safety,” Sussex Pride Director David Mariner said before the House Judiciary Committee. “This defense is nothing more than a thinly veiled attempt to excuse bigotry and hate crimes, and it has no place in our justice system.”

Scholars and advocates say it’s unknown how many times it’s been used because there is no single national place where the crimes are reported. Andresen said he probably only knows a quarter of the cases in which it has been invoked. 

It’s hard to find out when it is used, Delaware lawyer Mark Purpura said, because it’s unlikely researchers will find cases where it has been used successfully because the decision won’t be appealed. Andresen agreed. He said he finds cases through media reports, internet posts, and court appeals. 

The House does not seem to be aware of the cases in Delaware; Purpura said during testimony that he was unaware of any uses in Delaware. 

The American Bar Association announced its support for LGBTQ+ panic defense bans in 2013. Many legal scholars support bans, but not all. Some argue there are better ways to eliminate the effectiveness of the defense than banning it.

Cynthia Lee, a law professor at George Washington University, was one of them until recently. She argued that defendants should have to explicitly say that they were shocked their victim was LGBTQ. That way, she argued, all the defendant’s cards would be on the table. 

“When gay panic arguments are forced to take a covert turn — when they are not explicit or out in the open — they may actually be more effective than they would be if out in the open,” she wrote in 2017, citing a 1986 trial in which the defense called four Black teenagers “savages,” “predators,” and “vultures” but didn’t mention their race explicitly. The jury found the shooter not guilty on almost all the charges. 

“The existing research on stereotypes and prejudice suggests that stereotypes, which are deeply entrenched in the subconscious, are triggered more readily when not made salient,” Lee wrote, adding that it’s more effective to educate people. She did not respond to a request for comment. 

Asked about Lee’s concerns that lawyers would find a way around the ban Purpura agreed that it’s possible.

“It’s a risk,” he said. “If you’re a defense attorney, that could backfire.” 

But, he said, doing nothing is far worse. If the jury hears the defense, he fears, it might resonate. Lee now agrees, writing in 2019 that making the bigotry clear isn’t enough to nullify the defense. 

The most famous case of the gay panic defense followed the murder of Matthew Shepard, a gay college student in Wyoming. Aaron McKinney and Russell Henderson had offered Shepard a ride home, which he accepted. Instead of driving him home, the pair drove to a remote area and proceeded to rob and torture Shepard, then tied him to a fence and left him to die.

McKinney’s lawyers claimed that Shepard made sexual advances toward him, and was driven to insanity in that moment, leading him to kill Shepard. The judge rejected the defense but allowed evidence portraying Shepard as an aggressive sexual deviant, Lee wrote. Shepard and Henderson were sentenced to two consecutive life sentences.

Morrison cited a 2015 case of the defense being used before the House Judiciary Committee, when Texas resident James Miller invited his neighbor Daniel Spencer over for a night of drinking and music. Miller claimed Spencer came on to him, so he stabbed Spencer in self-defense. Prosecutors argued that the blood at the crime scene didn’t match Miller’s version of events and it could very well have gone down the opposite way.

Either way, the jury sentenced Miller only to 10 years of probation and the judge tacked on six months in jail. Scholars have categorized the killing as using the gay panic defense. 

Andresen keeps a private up-to-date database of LGBTQ panic defense uses, and the Williams Institute published its latest database in 2021. Andresen also found a 2018 Texas case in which Mark Daniel Lewis did not face trial after admitting he pushed Kenne McFadden, a transgender woman, into a river. He claimed she had groped him, according to local news reports. Prosecutors are taking a fresh look at the case after Insider found new evidence.

The only opposition so far to Delaware’s bill comes from Rep. Jeffrey Spiegelman, a Republican who represents the Townsend area. He asked why the bill only prohibits LGBTQ+ panic defenses and not those for religion or race. Purpura said he’s unaware of anyone invoking the panic defense after discovering someone’s race or religion. 

Still, Spiegelman offered an amendment to the bill to prohibit all panic defenses based on race, religion, color, disability, sexual orientation, sex, age, gender identity, national origin, and a person’s ancestry. He did not respond to a voicemail.

Morrison, who introduced the bill, said the amendment “diminishes” the bill’s purpose.

“It takes the emphasis away from the fact that this is an issue of incredible importance to the LGBTQ+ community that affects the LGBTQ+ community, so we want to keep that spotlight,” he said in an interview.

The original bill, HB 142, was substituted for HS 1 to “make a legislator happy” and clarify that the bill does not ban mental illness from being used as a defense, Morrison said.

The substitution and re-introduction means the amendment attached to the original bill is gone, and Rep. Spiegelman did not respond to a voicemail asking if he will re-introduce it. 

Most representatives on the House Judiciary Committee, including Spiegelman, voted to advance the bill out of committee. Rep. Bryan Shupe did not vote either way, saying he needed more information. 

The bill currently has 22 co-sponsors. There is one Republican in the group, Rep. Michael Smith, but Purpura said he doesn’t expect bipartisan support, which he said is “disappointing.” 

The biggest challenge to the bill may be the time crunch before the Delaware Legislature goes on vacation on June 30. The Delaware House and Senate are currently scheduled to consider 17 bills and 33 more are on the House’s list of bills ready to be put on the agenda. And even more bills will be voted out of committee soon and will take their place on the ready list. 

Delaware’s House Speaker, Pete Schwartzkopf, will decide where – or whether – to put the bill on the agenda for the House to vote on it. If the House passes it, it will go to a Senate committee and, if passed out of the committee, will go to the Senate floor for a vote and end up on the governor’s desk if passed. Schwartzkopf’s legislative assistant did not return a voicemail asking whether he will fast track the bill. 

But the bill has plenty of time to go through all the motions – the legislature’s last day is June 30. After that, the bill would have most of next year to go through the motions.