*CONTENT WARNING*: Violence, homophobia, transphobia, mention of death, links to details of assault

I still remember being berated. I remember the fear, the nerves, as they swim down my spine upon recall. Someone screams “God is watching” in front of a crowd as I share a quick kiss with my girlfriend at an outdoor festival. A cackle of laughs ensues from the anonymous herald’s friends who decide to join in on the casual homophobia. The anger is visceral, but out of fear for my and my girlfriend’s lives, I suppress it. We hurry home in the dark.

Some time later it dawns on me that I have now lived in three states in which it might have been legally defensible for these men to harm me and my girlfriend simply for openly expressing our love. The LGBTQ “panic” defense is a legal strategy that seeks to blame a defendant’s violence or homicidal behavior on a victim’s sexual orientation or gender identity. The strategy is based on the notion of “homosexual panic,” a term coined by 19th century psychiatrist Edward Kempf to describe an event in which a straight man’s fear of being identified as gay would  induce temporary insanity and possibly deadly acts of violence. From Aaron McKinney’s reduced sentence in the 1998 murder case of Matthew Shephard, to the case made against the late Bella Evangelista, a trans woman whose former partner murdered her upon learning of her trans identity, perpetrators have used the panic defense countless times in attempts to justify violence against LGBTQ people. Rooted in notions of homophobia and transphobia that continue to pervade the U.S. legal system, the strategy has been used in the courtroom as recently as 2018.

While it is not officially recognized as law, LGBTQ panic is used by defense teams to enhance other legal strategies. Some stick to associating non-heteronormative identities with sexually aggressive behavior as a tactic, while other defendents plead innocence based on their own fear of being identified as gay. Senator Edward Markey (D-MA) and Representative Joe Kennedy III (D-MA) recently proposed a ban on legally justifying a defendant’s use of force against another person based on that person’s sexual orientation or identity, but they face an uphill battle. Defense attorneys have put constitutional pressure on targeted efforts to fight the strategy, dubiously arguing that an outright ban on the panic defense would be in violation of defendant rights to choose the evidence they use in building their cases. But vague policies leave room for vague interpretations, and a legal system that grants prejudice on the basis of prioritizing amorphous notions of defendant rights is a sure pathway to putting human rights at risk. It allows a victim’s sexual orientation or gender identity to become a scapegoat for a hateful person’s loss of self-control — or worse — deadly assault.

It continues to feel ridiculous to ask people not to kill other people because of who they love or who they are. Like many, I am no stranger to being on the receiving end of unwanted advances and sexual harassment. I can compartmentalize and separate this, however, from my right to exist as a sexually active queer person. Just as a mistaken conception of someone’s age is not an adequate defense of rape, fear of association with queerness or transness is not an acceptable defense of murder. If judicial systems can ban ignorance of age as an acceptable defense for committing a crime, surely they can employ a nationwide ban of homophobia, transphobia and hate as acceptable excuses for violence and murder rather than maintaining a legal status quo that leaves the right to live up to the discretion of states and violent actors. 

In the state of Massachusetts, where my girlfriend and I live, propositions have been introduced, but no anti-panic defense law exists. It feels ironic to reside in the first state to legalize gay marriage and also one of the 39 that has still refused to outlaw such discriminating legal defenses. We do not hold hands much in public anymore, not even in cities in which we have previously felt safe. According to federal statistics, about one out of every five LGBTQ people and one out of every four transgender individuals suffer a hate crime in their lifetime. Black and Latinx LGBTQ communities are even more likely to experience hate crimes. The right to life continues to be treated as a scarce commodity in the United States, a luxury belonging to those who demand it be taken away from others the minute it threatens the values of puritannical America.