Minnesota Lawyer
Scott Dibble
Since 2014, states across the nation have outlawed the “gay panic” defense. On April 25, the Minnesota Senate decided that Minnesota would not yet be following suit.
What has been referred to as the “gay panic” defense is more accurately referred to as the gay/trans panic defense or LGBTQ+ panic defense. While the gay or trans panic defense is not an affirmative legal defense, it is a tactic that is utilized by the defense through exploiting prejudice and biases against LGBTQ+ people. Essentially, the defense is that an LGBTQ person—simply by existing or making an actual or mistaken sexual advance—caused an individual to panic and kill the LGBTQ person.
Gay and trans panic defenses have appeared since the 1960s in court opinions in the United States, according to UCLA’s Williams Institute. The most famous attempt at using this defense occurred when Aaron McKinney, who along with Russell Henderson killed Matthew Shepard, attempted to use the defense. McKinney alleged Shepard made sexual advances which caused him to brutally murder Shepard. The judge did not allow use of the defense.
In 2013, the American Bar Association passed Resolution 113A. It urged governments to get rid of these panic defenses, as well as recommended that courts instruct juries to avoid victims’ genders and sexual orientations during their deliberations.
California became the first state to ban these defenses in 2014. In 2021 alone, Maryland, Oregon, Vermont, Virginia, and the District of Columbia banned the gay panic and trans panic defenses. Virginia was the first Southern state to pass a ban on the defense. However, 35 states still permit use of the gay panic defense.
Those opposed to gay and trans panic defenses say that these defenses greenlight violence against the LGBTQ+ community. The Williams Institute has found that transgender people were over four times more likely than cisgender people to experience violence including rape, sexual assault, and simple assault. Those numbers are higher for transgender people of color.
Sen. Scott Dibble, DFL-Minneapolis, introduced a bill to ban these defenses (SF 1512) in the Minnesota Senate in 2021. Rep. Athena Hollis, DFL-St. Paul, introduced a companion in the House. On April 25, Dibble offered the A-85 Amendment to the Omnibus Public Safety Policy and Supplemental Funding Bill, which had language identical to the Senate bill. At a vote of 32-35, the amendment did not advance.
In discussions on the Senate floor, Sen. Bill Ingebrigsten, R-Alexandria, asked why the LGBTQ community would be specifically identified. Dibble responded: “We are targeted, Senator Ingebrigtsen. You’re not targeted the way I’m targeted when I’m walking around my neighborhood and someone figures out that I’m a gay guy and they go after me. That never happens to someone like you.”
