Michigan could soon be the 18th state to ban a courtroom strategy known as the “LGBTQ+ panic defense.”
The LGBTQ+ panic defense, also known as the gay or trans panic defense, is used to justify a defendant’s violent attack on an LGBTQ+ person by claiming that the victim’s gender identification or sexual orientation in itself provoked an emotional state in the defendant that led them to attack the victim.
H.B. 4718, if passed, would mandate that “a person is not justified in using force against another person based on the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation.”
“It’s usually used in conjunction with other defenses as a way to play on unfortunate prejudices in an effort to lead to lighter sentences,” Michigan House Speaker Pro Tem Laurie Pohutsky, a sponsor of the bill, told Traverse City NBC affiliate WPBN. “The root of the matter, the whole defense is based in the thought that trans and LGBTQ folks are less human than other victims, which is why it’s so important to ban the use of the defense.”
According to data from the LGBTQ+ Bar Association, the strategy is currently legal in 33 states, including Michigan. The association lists an incomplete tally of 13 cases in which the defense has been used since 1995.
The LGBTQ+ panic defense was at the center of the defendant’s legal strategy for a murder that took place in Michigan that year. Jonathan Schmitz was accused of murdering Scott Amedure, a friend who days earlier had confessed on a talk show to having a crush on him, at his home in Lake Orion, Michigan. Schmitz’s counsel argued that his mental state had suffered due to the confession, and though a jury ultimately convicted Schmitz of second-degree murder, they considered his state of mind when reducing the charge from first-degree murder.
In a more recent case, the strategy was used successfully in 2015 in Austin, Texas, in a case in which a man named James Miller was accused of murdering his neighbor, Daniel Spencer. Miller was sentenced to six months in jail and 10 years’ probation, avoiding prison time, after his defense counsel argued he had killed Spencer in self-defense after Spencer attempted to kiss him.
The nonprofit news site Michigan Advance reported that Pohutsky, who is bisexual, said during a Michigan House Criminal Justice Committee hearing on the bill in September, “At its very core, this defense [makes] crimes against the community carry less weight, because we are inherently less human, and therefore less valuable.”
The bill is now in the Democratic-controlled state Senate, where it has been referred to the Committee on Civil Rights, Judiciary and Public Safety. Gov. Gretchen Whitmer has not yet said whether she will sign the bill, but did sign legislation banning conversion therapy and creating new anti-discrimination protections for LGBTQ+ people earlier this year.