The Oregon House of Representatives passed SB 704 on May 13, a piece of legislation that bans the “LGBTQ panic defense” for murder. The bill now awaits a signature from Oregon Gov. Kate Brown before it goes into law.
The “LGBTQ panic defense” has historically been used as a legal defense for murder. Those using the justification claim that violence against a gay or trans individual was due to “extreme emotional disturbance” about the victim’s queer identity in order to lighten their sentence.
Basic Rights Oregon, a nonprofit LGBTQ advocacy group, requested the proposal of the bill. The group emphasizes the needs of People of Color, trans and nonbinary individuals, youth and people who live outside the Portland metro area.
Mikki Gillette, Basic Rights Oregon’s major gifts officer, said the bill was something that people, especially trans people, had asked about for the past couple years. She said the group tries to focus on a piece of legislation every other year that will impact Oregon’s LGBTQ communitiy as much as possible, and that community voices brought the “LGBTQ panic defense” to the front.
“Someone who had harmed or killed a trans person was allowed to say that they were somehow justified,” Gillette said, “or it was somehow the trans person’s fault for being who they were that caused the violence.”
Oregon was one of nine states to introduce a bill that would ban the “LGBTQ panic defense” during its 2021 legislative session. It’s already banned in 13 states and in the District of Columbia.
Zack Johnson is a second-year law student at the University of Oregon, as well as the vice president and treasurer of OUTLaws — an LGBTQ group at the UO law school. He said he sees the bill as a positive step, even if it was something that should’ve happened many years ago.
“To provide that defense allows for people who have committed the crime — and the court, for that matter — to treat queer and trans individuals as second class citizens,” he said. Johnson said allowing “gay panic” as a defense for murder implies that queer people’s identity and life is a crime.
Although the “LGBTQ panic defense” is largely tied to the past — it was most famously attempted in Matthew Shepard’s 1999 murder trial — Gillette said Basic Rights Oregon has heard anecdotes about people using the excuse during closed-door, pretrial bargaining stages. According to The LGBT Bar, the defense was most recently successfully used in April 2018, when Robert Miller claimed he had killed his neighbor Daniel Spencer as self-defense to Spencer’s alleged unwanted sexual advance.
Johnson said the way the bill plays out still remains to be seen. “In Oregon, where our roots are so tied to racism, my concern for this bill is that it’s not actually going to be particularly effective to the people who need it most,” he said.
According to the Human Rights Campaign, 2021 marks a record-breaking year for anti-trans bills in state legislatures. It’s also a year that has seen at least 26 trans and gender nonconforming indivduals fatally shot or violently killed. In 2020, HRC reported 44 violent fatal incidents — the most on record since it started tracking violence against trans people in 2013. The majority of those targeted by fatal attacks have been Black and Latinx trans women.
HRC’s 2020 report included fatal violence against trans people in three of the states that had banned an “LGBTQ panic defense” in 2019 or earlier.
Aja Raquell Rhone-Spears, a Black trans woman who was fatally stabbed in Portland, is among those in HRC’s 2020 violence report. Gillette said Rhone-Spears’ sister testified in support of SB 704.
Tete Gulley’s family and Portland activists have also called for further investigation into her death as a potential homicide. Gulley, a homeless Black trans woman, was found dead in 2019.
Johnson said eliminating an “LGBTQ panic defense” doesn’t necessarily give anyone additional resources or protection. While SB 704 serves as a statement of value — and is important through that lens — it’s not necessarily going to stop someone from murdering an LGBTQ person, he said.
But Johnson said he sees the bill being helpful for the families and loved ones of murdered LGBTQ people who are able to take the case to court. There’s value in “the feeling that the life of their loved one is valued at the same level as someone who wasn’t killed because they are straight or because they are cis,” he said.
Legislation like SB 704 can also serve as a springboard to create more active protections for queer and trans people, Johnson said. It’s something Gillette wants to do with Basic Rights Oregon going forward, with a focus on the most vulnerable LGBTQ Oregonians.
“I feel like a state saying there’s never an excuse for harming a trans person or killing a trans person because trans people are valued here, that’s powerful,” she said.
