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“Gay and Transgender Panic Defense” Could Soon No Longer Be Available To Criminal Defendants


The “gay and transgender panic” criminal defense has been around for a long time, dating back to homosexuality being listed in the Diagnostic Manual of Mental Disorders. Extremely controversial, the defense effectively allows a murder conviction to be downgraded to manslaughter, negligent homicide, or another lesser charge if the defendant claims that they suffered from insanity/diminished capacity, was provoked, or acted in self-defense after perceiving threats of serious bodily harm due to receiving unwanted advances from a gay or transgender individual. The only states that have taken the defense off the books as a viable defense to date are California, Rhode Island, and Illinois.

However, that could soon change: Several lawmakers have filed federal bills to eliminate it as a viable criminal defense. Although criminal laws have always been left up to each individual state, the legislation would effectively eliminate its use in federal court and provide a template for each state that has not already to eliminate the gay and transgender panic defense as an option to a defendant.

History in Florida

The defense has a history in Florida, where two defendants had first-degree murder charges downgraded to manslaughter after claiming that they shot the victim because the victim made unwanted sexual advances. Within the last two years, a number of transgender individuals have been killed after those responsible claimed that they went into a “blind fury” upon finding out that the victims were transgender. 

Many Concerns over the Defense

While criminal defense advocates often point out that defendants need access to every possible tool in order to put together and present their defense, many have come out against the availability of this defense, pointing out that it could encourage certain individuals to commit hate crimes and sends a damaging message that an LGBTQ individual’s life is not worth protecting in court.

The Legislation

Proposed drafts of the federal legislation propose that the defense effectively presents gender identity and sexual orientation as reasonable excuses for loss of self-control and is incompatible with the intent of federal law to provide equal protection to victims of crimes. The legislation prohibits the use of “nonviolent sexual advances or perceptions of belief… of the gender, gender identity or expression, or sexual orientation… [to be] used to excuse or justify” someone’s illegal conduct or “mitigate the severity of an offense.” However, it does carve out an exception, allowing a court to admit evidence of prior trauma of the defendant for the purposes of excusing or justifying the conduct of the defendant, or mitigating the severity of the offense.

Contact Our Florida Criminal Defense Attorneys

If you are facing charges of a criminal offense of any kind, contact our Florida criminal defense attorneys at the office of William Wallshein, P.A. for a free consultation to find out how we can help.





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