Delaware bill looks to protect LGBTQ people by banning the ‘panic defense’

DOVER, Del. – A Delaware bill looks to protect members of the LGBTQ community by banning the so-called panic defense.

House Bill 142 would put an end to the so-called LGBTQ panic defense, a legal strategy that allows defense teams to argue that a victim’s sexual orientation or gender identity was the reason for a defendant’s violent reaction. This defense strategy has been used for decades in violent cases across the country, up to and including murder trials.

“We have seen this defense used actually in the United States at least as far back as the 1800’s, and it’s always been used to target LGBTQ people,” the bill’s primary sponsor, State Rep. Eric Morrison explained. “Very famously, in the Matthew Shepard case.”

Matthew Wayne Shepard was a gay student at the University of Wyoming who was beaten, tortured, and left to die in October of 1998. Defense attorneys for Shepard’s attackers tried to use the panic defense at the time, but those efforts were ultimately barred by the judge.

“They met Matthew Shepard in a bar, they offered him a ride home, and instead of that they actually took him into a field, they beat him almost to death, they tied him to a barbed-wire fence in the middle of winter in Wyoming and left him for dead,” Rep. Morrison explained. “18 hours later someone found him and actually thought he was a scarecrow.”

While that attempt and other cases to use the panic defense have been unsuccessful, Rep. Morrison says there have in fact been recent cases where it was successful.

“In 2018, there was a case in Texas where two men, who lived in the same neighborhood, got to know each other and discovered they liked the same kind of music. They decided to get together one night in one of their homes and listen to music together,” Rep. Morrison explained. “Well, the one man thought the other man may have been gay and allegedly, because we don’t always know if this happens always in these cases for real, but allegedly made a pass at him and the man stabbed the gay man to death in his living room.”

Rep. Morrison then went on to explain how the panic defense was used in that case and the defendant received no jail time.

“In trial, he said ‘I didn’t know he was gay and when he went to kiss me, I panicked, and lost my mind,'” Rep. Morrison said. “That man received nothing but probation. So, this has been used successfully and unsuccessfully and it’s important to get rid of it.”

The defense strategy, most commonly referred to as the ‘gay panic defense’, has a long history of targeting gay men but is now being used increasingly against trans people.

“This has traditionally been known as the gay panic defense,” Rep. Morrison said. “But it’s now being called the LGBTQ panic defense because it’s actually being used more now to target trans folks than gay men.”

The bill has bipartisan support and has already cleared committee. It now awaits a full vote in the Delaware House.