The "gay panic" or "trans panic" defence, a deeply discriminatory legal strategy employed since the early 1960s, has allowed perpetrators of violence against LGBTQIA+ individuals to mitigate or completely avoid culpability for their actions. This tactic hinges on the preposterous and harmful assertion that a victim's sexual orientation or gender identity somehow provoked the violent act, thus reducing the perpetrator's accountability.

The defence rests on outdated and debunked notions of same-sex attraction and gender dysphoria as inherently pathological, perpetuating harmful stereotypes and fostering a climate of fear and discrimination against LGBTQIA+ communities. This essay will explore the history and evolution of the "panic defence" in the United States and Australia, highlighting the significant legal battles and social progress made in the fight to eradicate this discriminatory tactic from the justice system.

The core of the "panic defence" is the flawed and prejudiced argument that the victim's LGBTQIA+ identity triggered a temporary state of insanity in the perpetrator, thus diminishing their culpability for violent acts ranging from assault to murder. This strategy subtly, yet powerfully, frames LGBTQIA+ individuals as inherently provocative and dangerous, thereby shifting blame from the perpetrator to the victim.

This insidious framing relies heavily on societal prejudices rooted in homophobia and transphobia - prejudices that have historically pathologized LGBTQIA+ identities, portraying them as inherently deviant or mentally unstable. Even though these views were largely discredited by the 1970s, the "panic defence" continues to exploit lingering societal biases.

The tragic consequences of this defence are vividly illustrated by several high-profile cases in the United States. The 1998 murder of Matthew Shepard, a gay college student, and the 2013 beating of Islan Nettles, a transgender woman, which resulted in her death, stand as stark reminders of the devastating impact of this prejudiced legal strategy.

In both cases, the perpetrators attempted to use the "panic defence" to lessen their sentences, highlighting the way in which this tactic not only excuses violence but also further victimizes the deceased. These cases, and many others like them, galvanized advocacy groups and legal professionals to fight for the eradication of the "panic defence."

The culmination of years of activism and legal advocacy led to a significant turning point in 2013. The American Bar Association (ABA) called for a nationwide ban on the use of panic defences, urging state governments to actively legislate against this discriminatory practice. California answered this call, becoming the first state to successfully ban the "panic defence" in 2014. This landmark decision set a crucial precedent, setting in motion a wave of legislative change across the United States.

Illinois followed suit in 2017, and other states, including Rhode Island, Nevada, New York, Connecticut, Hawaii, and Maine, enacted bans in 2018. The momentum continued with New Jersey and Washington enacting bans in 2019, and Colorado joining the movement in 2020. These legislative victories represent a significant step toward achieving a more just and equitable legal system for LGBTQIA+ individuals.

The fight against the "panic defence" is not confined to the United States. Australia faces a similar challenge with its "provocation defence," which, in practice, has often been broadened to include a "homosexual advance defence." This defence allows perpetrators to claim provocation based on non-violent sexual advances related to a victim's sexual orientation or gender identity. However, even within Australia, the response to this issue has been varied.

Tasmania, which, until the 1990s, earned the moniker "Bigot's Island" for its history of resistance to LGBTQIA+ rights, surprisingly took the lead in enacting LGBTQIA+ law reforms, including the prohibition of the "panic defence." Victoria (2005), Western Australia (2008), and Queensland (2017) also banned the defence.

Other jurisdictions, like New South Wales, the Australian Capital Territory, and the Northern Territory, took a different approach, modifying and ultimately banning defences based on non-violent sexual advances of any kind, regardless of the victim's sexual orientation or gender identity. Ironically, South Australia, the first state to legalize consensual gay sex, was the last to outlaw the "panic defence," finally doing so in 2020.

The diverse approaches adopted by different Australian states and territories showcase the complex interplay between social attitudes, political will, and legal frameworks in addressing discriminatory practices. The stark contrast between Tasmania's proactive stance - particularly given its past - and South Australia's delayed action highlights the evolving nature of social attitudes towards LGBTQIA+ rights and the ongoing need for vigilance in combating prejudice.

The movement to ban the "panic defence" is not merely a legal battle; it's a crucial step in dismantling systemic prejudice within the legal system. By refusing to accept the argument that a victim's sexual orientation or gender identity justifies violent acts, these bans send a powerful message that LGBTQIA+ lives are valued and that violence against them will not be tolerated or rationalized.

These legislative changes reflect a broader societal recognition that LGBTQIA+ identities are not inherently provocative and that the "panic defence" perpetuates harmful stereotypes and fuels a climate of fear and discrimination.

The ongoing struggle to outlaw this discriminatory tactic across all jurisdictions underscores the importance of continued activism, legal advocacy, and public awareness campaigns. The success achieved in the United States and Australia demonstrates the power of collective action and coordinated efforts in challenging deeply ingrained prejudices.

However, the ongoing existence of similar defences in other parts of the world serves as a reminder of the need for sustained vigilance and persistent efforts to challenge all forms of prejudice and discrimination against LGBTQIA+ communities. Ultimately, the complete eradication of the "panic defense" is a critical step in creating truly inclusive, equitable, and just legal systems that protect and uphold the rights of all individuals, regardless of their sexual orientation or gender identity.

Reference:

• The True Crime File, Kim Daly.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565