(Source: MIRS.news, Published 06/21/2024) Use of "gay and trans panic" defenses – a legal strategy to excuse violence against LGBTQ people because the criminal defendant had just discovered their sexual orientation or gender expression – would be officially banned in Michigan, under a bill the state Senate passed.  

On Thursday, the Senate approved HB 4718 by Rep. Laurie Pohutsky (D-Livonia) 24-14, after Sens. Mark Huizenga (R-Walker), Jonathan Lindsey (R-Brooklyn), Ed McBroom (R-Waucedah Twp.) and Dan Lauwers (R-Brockway) joined Democrats in supporting the bills.  

While speaking to the Senate Civil Rights, Judiciary and Public Safety Committee in March, Pohutsky said the most notable use of the "LGBTQ panic defense" was in 1998 death of 21-year-old Matthew Shepard, a gay man studying political science at the University of Wyoming.  

Shepard was tied to a fence and "pistol-whipped" into a coma by two 22-year-olds. According to the Washington Post's coverage of the case, the defense informed jurors that the crime was "triggered" by one of the men's "drug and alcohol use, traumatic youthful homosexual episodes and an unwanted sexual advance by Shepard."  

Coverage of the court proceedings described the defense as attempting to use the "gay panic" mechanism, based on someone with "latent gay tendencies" experiencing "an uncontrollable, violent reaction when propositioned by a homosexual."  

However, the judge decided the defense attorneys did not offer any evidence that such a strategy would be relevant.  

Pohutsky said that Shepard spent six days in the hospital and ultimately died.  

"This defense is used much more contemporaneously against trans individuals, particularly Black trans individuals, in order to lessen the penalties for assault of crimes against – and murders of – those communities," Pohutsky said. "The LGBTQ panic defense is often deployed as a component of other defenses, to play on the unfortunate prejudices of some judges and juries in an effort to mitigate the penalties for these crimes."  

She described HB 4718 as rejecting the notion that crimes against LGBTQ residents carry less weight.  

The bill clarifies that someone would not be justified in using force against another person based on discovering their actual or perceived gender identity, gender expression or sexual orientation. 

Demonstration of "reasonable provocation," of the act being committed "in a heat of passion" or support that the defense had "reduced mental capacity" would also not justify an attack based on learning about someone's sexual orientation or gender expression.  

According to the Movement Advancement Project (MAP), an "equality" think tank and 501(c)(3) nonprofit, Michigan is one of 31 states where there is not an official ban on using legal defenses "claiming the victim's sexual orientation and/or gender identity contributed to the defendant's actions." Meanwhile, 19 states and Washington, D.C. – including Colorado, California, Washington state, Illinois and Virginia – have such a prohibition in the books.  

An April 2021 report by the Williams Institute at the University of California, Los Angeles' School of Law concluded that among LGBTQ individuals in the country, there were 71.1 instances of violent victimization – like sexual assault, robbery and aggravated assault – per 1,000 people.  

Meanwhile, for non-LGBTQ people, there were 19.2 instances of violent victimization per 1,000 individuals.  

On Thursday, Sen. Jim Runestad (R-White Lake) introduced an unsuccessful floor amendment to HB 4718 , attempting to add language that the legislation would not apply unless the discovery or potential disclosure of the aforementioned identities "was the sole or exclusive basis for the use of force."  

"The problem I see here is how strict the language might be read under the plain language doctrine," Runestad said, describing a situation where a woman experiences "reasonable fears" after learning a man is sexually interested in her, which could be considered a "discovery of the man's sexual orientation."  

If the woman shoves the man out of the way after learning he is sexually interested in her, would she be accused of attempting to use the panic defense?  

"The objectives should be to avoid preventing people from presenting their reasonable concerns that arose during the context in which the events transpired," Runestad said. "I understand that the intent of this bill is to eliminate the gay panic defense. It is absolutely reasonable to bar people from attacking someone else simply due to a knowledge of the factors presented in this bill. The question, though, becomes (if) the language used in this bill is so broad, it might extend to situations where the additional context is highly relevant, such as described above."  

The bill is now awaiting a concurrence vote in the House before going to the Governor's office for her signature. Near the end of April, the Michigan Civil Rights Commission (MCRC) approved a resolution supporting a state ban on the so-called gay panic defense, with Commissioner Luke LONDO, a Hazel Park city council member, saying that the legal mechanism "reinforces the dangerous and discredited belief that LGBTQ+ lives are worth less than others."