A scene from the 2018 Philly Pride Parade

HARRISBURG — In all but three states, people accused of murder can still deploy what’s known as a gay or trans panic defense.

A lawyer tried to use that tactic to justify why his client beat and tortured Matthew Shepard, the college student whose death became a rallying crying for LGBTQ hate crime legislation. A Pennsylvania lawyer, who decades later ran for state Supreme Court, similarly contended that the sight of two women having sex drove his client to shoot them, one fatally. In both cases, the judge rejected the argument.

State Sen. Larry Farnese of Philadelphia wants Pennsylvania to become the next state to prohibit the use of these defenses in murder trials.

A co-sponsorship memo released by the Democrat this week cites “an unprecedented rise in hate crimes” against LGBTQ people.

“I think it is hypocritical for some in this legislature who believe that the LGBTQ community is not worthy of its protection or recognition that they are victims of hate crimes,” Farnese said, “but at the same time they will allow — or at the very least are complicit in allowing — a defense to be raised in a capital charge based completely upon that same community that they deem unworthy of protecting.”

The senator was referencing the General Assembly’s repeated failure to advance his and other legislators’ bills that extend hate crime protections to LGBTQ people and prohibit discrimination against Pennsylvanians based on sexual orientation or gender identity. The bills have been stuck in Republican-controlled House and Senate committees since their introduction, and previous iterations have gone nowhere.

He added that it’s “deplorable” Pennsylvania still permits this defense even as it refuses to protect LGBTQ people against hate crimes.

“That’s the hypocrisy I can’t get my arms around,” he said.

How the panic defense is used

Gay or trans panic defenses aren’t uniform, but they are usually deployed in three ways, according to UCLA’s Williams Institute:

  • to say the discovery of a victim’s orientation was such a provocative act that it led to murder
  • to claim such a discovery caused a defendant’s temporary mental breakdown
  • to justify self-defense

Language for Farnese’s bill has yet to be released. Related legislation introduced by Rep. Michael Schlossberg last session died in committee. House Bill 1509 sought to make it impossible to mitigate a murder charge using a gay panic defense by amending the definition of serious provocation as it applies to voluntary manslaughter: “The term does not include the discovery of, knowledge about or potential disclosure of the homicide victim’s actual or perceived gender identity or expression or affectional or sexual orientation.”

That tactic — altering the definition of voluntary manslaughter — is how California effectively prohibited the defense. Rhode Island restricted panic defenses based on provocation, diminished capacity, and self-defense, while Illinois’ law states that non-violent sexual advances or a person’s sex or orientation cannot be used to argue for a reduced a sentence in a murder case. The latter ban was passed nearly a decade after a Chicago man was acquitted after stabbing his neighbor more than 60 times.

Billy Penn couldn’t locate any recent cases where the defense was attempted in Pennsylvania, but it’s still used elsewhere. In Texas, an Austin man said he killed his neighbor in 2015 after an attempted sexual advance, and ended up sentenced to probation.

A push to end ‘legalized discrimination’

The National LGBT Bar Association argues that even the existence of the defense devalues queer and trans people’s existences. The organization successfully lobbied the American Bar Association to adopt a resolution that urges governments to “curtail the availability and effectiveness” of panic defenses.

D.C., New Jersey, and Washington state have considered bans. There’s also a new push to prohibit the defense on the federal level, spearheaded by Massachusetts Democrats Sen. Edward Markey and Rep. Joe Kennedy.

That bill has about as good a chance of passing Congress as Pennsylvania’s does the General Assembly (read: not very good).

But Farnese doesn’t see why Republicans who are concerned about revenue wouldn’t want to pass a bill that makes the state better for LGBTQ people — and therefore economic development. Anti-LGBTQ bills have been rejected by the business communities in states like Texas because of the negative effect they have on prominent industries.

Some lawyers have argued that these bans can actually benefit defendants who harm LGBTQ people. “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,” George Washington University’s Cynthia Lee wrote in 2008.

But for Farnese, such a prohibition is a necessary to move toward ending “legalized discrimination” in Pennsylvania.

“Legally, I don’t see how a sitting judge can make a determination that … such a defense is permissible in a Pennsylvania court room,” he said.

Sarah Anne Hughes is based in Harrisburg for The Incline and Billy Penn as the sites’ first-ever state capitol reporter and is a 2018 corps member for Report for America, a new initiative that seeks...