Ban ‘panic defence’, save LGBTQ lives

Allowing the use of the ‘panic defence’ in court enables impunity for murderers of LGBTQ people.

A protester holds a slogan with a photo of the killed transgender Filipino woman Jennifer Laude during a rally in Quezon City, the Philippines on September 11, 2020 [AP/Aaron Favila]

Last month, a Philippines criminal court granted US Marine Lance Corporal Robert Joseph Pemberton an early release from his ten-year prison sentence for killing a Filipino woman named Jennifer Laude in 2014. Miss Laude was found dead in a hotel room after the American serviceman strangled and drowned her in a hotel bathroom.

During their investigation, local police referred to the murder as a “hate crime”, having established that Pemberton attacked Miss Laude after finding out she was a transgender woman. At his 2015 murder trial, the serviceman claimed that he killed his victim while defending himself. This specious claim convinced the court to give him a lesser prison sentence.

The judge found Pemberton “guilty beyond reasonable doubt” of homicide, but reasoned that he reacted out of “passion and obfuscation” when he “arm-locked the deceased, and dunked [her] in the toilet”. The judge had accepted the defendant’s legal claim that Miss Laude’s not revealing her gender identity to him was a mitigating circumstance in the case. In this way, Pemberton successfully used a panic defence to dodge a harsher murder sentence.

Panic defences have been successfully used to mitigate sentences in murder cases of LGBTQ people around the world. By accepting such arguments, courts basically declare that killing an LGBTQ person is less of a crime than killing a non-LGBTQ person, and that the victim is to be blamed for having “provoked” the violence they experienced. When crimes committed against LGBTQ people are not treated the same as similar crimes committed against non-LGBTQ people, this sends a signal that it is okay to harm a LGBTQ person and that the perpetrator will not face full and just punishment.

Although Miss Laude’s murder took place thousands of kilometres away from where I live in the United States, her case disturbed me. I am a transgender woman myself and I live in a country where the number of murders of transgender people is now the highest ever recorded. Since January, 33 transgender people have been killed in the US and this makes me think seriously about my own and my friends’ safety.

Like in the Philippines, panic defences have been used here in the US. One of the most publicised cases was the 1998 trial for the murder of Matthew Shepard. Mr Shepard, a gay college student at the University of Wyoming was beaten, robbed, set on fire, tied to a roadside fence and then left for dead in the winter cold by two men who were captured and brought to trial. During the trial, one of the two defendants claimed that he was sexually bullied in his youth by another boy and that this caused him to panic and attack Shepard – after an alleged unwanted advance which he believed justified his violent actions.

The defendant’s panic defence claim was disallowed in court, but only because the state of Wyoming did not allow insanity pleas. However, he was eventually convicted of felony murder and sentenced to two life terms in prison, which carries a lesser punishment than the first-degree murder charge desired by prosecutors.

Another major case that involved panic defence was the murder of transgender teenager Gwen Araujo in 2002, in California after her transgender status was revealed at a party. Four men were charged with her murder. One defendant pled guilty to voluntary manslaughter, but the other three successfully used a panic defence to obtain a mistrial when a first-degree murder conviction could not be obtained.

In the second trial, prosecutors offered the lesser option of second-degree murder convictions – and the jury obliged for two defendants without additional hate-crime penalties attached, while the third defendant pled “no contest” to a lesser-charge of manslaughter. The murder and subsequent trials gripped California and the nation and would herald the campaign to end gay and transgender panic defences in America.

In the wake of the outrage that Ms Araujo’s murder and subsequent trials provoked, Governor Arnold Schwarzenegger signed the 2006 Gwen Araujo Justice for Victims Act, which became the first law to ban the use of societal bias, including panic strategies, to influence the proceeding of a criminal trial. Eight years later, California became the first US state to fully ban any use of a gay or transgender panic defence in its courts. Ten other US states have enacted bans since, and seven more states, as well as the District of Columbia are now considering them.

In the state of New Jersey, where I live and work, the panic defence was finally banned last year. In an important bipartisan moment in our state’s history, Republicans and Democrats in our state legislature voted unanimously in favour of the Gay and Transgender Panic Defence bill which disallows this type of defence in New Jersey courts. The bill was then promptly signed by our governor.

Despite these successes, the fight continues. There are still 39 US states where a panic defence can be used and we still do not have a federal law outlawing it in federal courts. The US House of Representatives and US Senate each have a bill called the Gay and Trans Panic Defense Prohibition Act of 2019, but both bills are stuck at committee-level and will likely not advance until a new Congress convenes next year.

Meanwhile, politicians at the local, state and national level continue to legislate to limit transgender and LGBTQ lives, proposing bills limiting access to restrooms and restricting medical treatments for transgender youth. Nationally, US Senator Kelly Loeffler (R-GA), who is running for reelection this November, recently found three co-sponsors for her bill to restrict transgender schoolgirls from playing sports as girls. This electoral season, like those in the past, has also seen vitriolic anti-transgender attacks and campaigns in places such as Texas and Michigan.

Hostility and aggression against transgender and LGBTQ people in general are also widespread across the world. Worldwide statistics hardly account for all acts of violence and murders, but a 2019 report stated that 331 trans and gender-diverse people were killed between October 2018 and September 2019. Brazil accounted for 130 reported murders, Mexico – 63, and the United States – 30. Statistics are hard to find in other places where violence and discrimination are widespread, including many African countries, as well as Iran, Poland, Chechnya and Russia.

While 29 countries recognise same-sex marriage, few of them ban gay and trans panic defence. Australia and New Zealand ban such defences, while France and Israel, among other countries only increase criminal penalties for hate crimes.

With LGBTQ people already facing much danger and aggression across the world, allowing the use of panic defences to continue only further endangers them. That is why the campaign to end its use in courts should now move to a global level.

In 2019, the United Nations General Assembly received a detailed, informative report called “Protection against violence and discrimination based on sexual orientation and gender identity”. To date, no substantial action has been taken on its findings. It is time for the UN to pick up the mantle and lead by calling on its members to collectively eradicate panic defences and commit to protecting LGBTQ lives.

We are all humans, regardless of our race, colour, religion, sexual orientation or gender identity; each of us deserves equality, respect and justice – even in death.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.