The gay panic defense or homosexual advance defense is a strategy of legal defense, where a heterosexual individual charged with a violent crime against a same-sex attracted individual claims they lost control and reacted violently because of an unwanted sexual advance that was made upon them.Multiple references: A defendant will use available legal defenses against assault and murder, with the aim of seeking an acquittal, a mitigated sentence, or a conviction of a lesser offense. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.
The is a closely related legal strategy applied in cases of assault or murder of a transgender individual whom the assailant(s) had engaged with, or were close to engaging with, in sexual relations, and claim(s) to have been unaware that the victim was transgender, producing in the attacker an alleged trans panic reaction. In most cases, the violence or murder is perpetrated by a heterosexual cisgender man against a heterosexual trans woman.
Broadly, the defenses may be called the "gay and trans panic defense" or the "LGBTQ+ panic defense".
History The gay panic defense grew out of a combination of legal defenses from the mid-nineteenth century and a mental disorder described in the early twentieth, seeking to apply the legal framework of the temporary insanity defense, provocation defense, or self-defense, often by using the mental condition of "homosexual panic disorder".
Homosexual panic disorder
Homosexual panic seen as a mental health disorder is distinct from the homosexual panic defense within the legal system. Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the legal defense implies only a temporary loss of self-control.
Edward J. Kempf, a psychiatrist, coined the term "homosexual panic" in 1920. He identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings," and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions. Kempf identified the condition during and after World War I at St. Elizabeths Hospital in Washington, D.C.
The disorder was briefly included in DSM-1 as a supplementary term in Appendix C but did not appear in any subsequent editions of DSM and thus is not considered a diagnosable condition by the American Psychiatric Association.
Unlike the legal defense created later and named after it, the onset of the condition was not attributed to unwanted homosexual advances. Rather, Kempf stated that it was caused by the individual's own "aroused homosexual cravings".
Types of defenses The gay panic defense strategy usually falls into three categories of defenses: the provocation defense, self defense (including imperfect self defense) and insanity based defenses (including temporary insanity, irresistible impulse, and diminished responsibility). The gay panic defense is not a stand-alone defense, but rather a legal tactic used by the defense which seeks to obtain an acquittal, a mitigated sentence, or a conviction of a lesser offense.
The defense is commonly defined by the attempt to shift the blame onto the victim's sexual orientation or gender identity of the victim as a form of victim blaming.
Jurisdictions Australia In Australia, it is known as the "homosexual advance defence" (HAD). Of its status in Australia, Kent Blore wrote in 2012:
In Australia, all Australian states have abolished the provocation defence altogether (Tasmania in 2003, Victoria in 2005, Western Australia in 2008 and South Australia in 2020) or restricted its application. Queensland restricted the defence of provocation in 2011, and further restricted it in 2017 (with an exception for 'exceptional circumstances' as determined by a magistrate). In a differing approach, New South Wales, the ACT and Northern Territory implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) are not a valid defence. In New South Wales, the law on provocation was amended to provide that the provocative conduct of the deceased must also have constituted a serious indictable offense.
Garry Wait, a 20-year-old waiter, mounted an unsuccessful gay panic defence after being charged with the murder of 63-year-old former federal MP Bill Arthur in 1982. Wait pleaded not guilty to murder but guilty to manslaughter, on the grounds that Arthur had made "homosexual advances." The jury rejected his account of the killing, convicting him of murder. He was sentenced to life imprisonment.
South Australia was the first Australian jurisdiction to legalize homosexual acts in 1975; however, it was the last Australian jurisdiction to repeal or overhaule the gay panic defense. In 2015, the South Australian state government was awaiting the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011, Michael Lindsay killed Andrew Negre. Lindsay's principal defense was that while he violently attacked Negre, the death resulted from another attacker. The secondary defense was that Lindsay stabbed Negre because he lost self-control after Negre made sexual advances to him and offered to pay him for sex. Lindsay was convicted of murder and sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the jury directions on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person would not have lost self-control and acted as Lindsay did. The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction, and an application for special leave to appeal to the High Court was dismissed. In April 2017, the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and/or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced. Finally, in 2020, South Australia abolished the defense of provocation altogether.
New Zealand In 2003, gay interior designer and former television host David McNee was killed by part-time sex worker Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.
In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.
On November 26, 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defense from New Zealand law, although some argued this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.
Philippines Lance Cpl. Joseph Scott Pemberton, a U.S. Marine from Massachusetts, was convicted of homicide (but not of murder) in the killing of Jennifer Laude in a motel room in Olongapo in the Philippines in 2014. Police said that Pemberton became enraged after discovering that Laude was transgender. After Pemberton served six years of a ten-year sentence, President Rodrigo Duterte gave him an absolute pardon. Sen. Imee Marcos said the pardon would help the Philippines maintain "very deep and very cordial" relations with the US.
United Kingdom Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence" or the "guardsman's defence". The latter term was used in a 1980 episode of Rumpole of the Bailey.
United States Federal laws In 2018, Senator Ed Markey (D-MA) and Representative Joe Kennedy III (D-MA) introduced S.3188 and H.R.6358, respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.
In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019 (S.1721 and H.R.3133). The bills would prohibit a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance of an individual or a perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense. Similarly to S.3188, after being sent to committee, the bill died at the end of 2020, and was re-introduced (as S.1137) in April 2021. It was reintroduced in June 2023 and 2025.
State laws
In 2006, the California State Legislature amended the Penal Code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes. The American Bar Association (ABA) unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses.
Following the ABA's resolution in 2013, the LGBT Bar has continued to work with concerned lawmakers at both the state and community levels to help ban the use of this tactic in courtrooms across the country.
+Bans and consideration of bans for gay and trans panic defense State Considered Banned Bill Ref California — 2014 AB2501 Illinois — 2017 SB1761 Rhode Island — 2018 H7066aa/S3014 Connecticut — 2019 SB-0058 Hawaii — 2019 HB711 Maine — 2019 LD1632 Nevada — 2019 SB97 New York 2014 — S7048 2015 A5467/S499 2017 A5001/S50 — 2019 A2707/S3293 New Jersey 2015 — A4083 2016 A429 2018 2020 A1796/S2609 Washington, D.C. 2017 — B22-0102 —2020B23-0409 Georgia 2018 — HB931 Wisconsin 2019 — AB436 Washington 2019 2020 HB1687 Pennsylvania 2020 — HB2333 Colorado— 2020 SB20-221 Texas2020 — HB73 Virginia— 2021 HB2132 Maryland— 2021 HB231 Oregon— 2021 HB3020/SB704 Vermont— 2021 HB128 Florida2021 — SB718 Iowa 2021 — HF310 New Mexico2021 2022 SB213 Minnesota2021 — SF360 Massachusetts2021 — HD2275/SD1183 Nebraska2021 — LB321 Arkansas2022 — LB321 North Carolina2022 — LB321 New Hampshire2021 — HB238 —2023HB315Delaware2023HB142Minnesota2024HB5216Michigan2024HB4718