Despite Progress, 'Gay And Trans Panic' Defense Continues To Victimize LGBTQ People

by Finbarr Toesland

EDGE Media Network Contributor

Sunday May 29, 2022
Originally published on May 20, 2022

17-year old trans teenager Nikki Kuhnhausen, who was murdered in 2019 and whose death has led to legislation against the use of the gay and trans panic defense.<br>
17-year old trans teenager Nikki Kuhnhausen, who was murdered in 2019 and whose death has led to legislation against the use of the gay and trans panic defense.
  

The advancement of LGBTQ rights across Western nations over the past few decades has been rapid. In the United States, in particular, LGBTQ people have seen major advancements in law, with equal marriage rights being introduced on the federal level in 2015 and, less than 20 years ago, the landmark decision of the U.S. Supreme Court in Lawrence v. Texas striking down all same-sex sodomy laws across the country.

Yet, clearly many barriers remain before all members of the LGBTQ community receive full rights under the law and are treated equally by law enforcement and the legal system. Defined by the LGBT Bar as "a legal strategy which asks a jury to find that a victim's sexual orientation or gender identity is to blame for the defendant's violent reaction, including murder," the so-called "gay and trans panic" defense is far from a relic of law.

(l-r) Daniel Spencer and James Miller
(l-r) Daniel Spencer and James Miller  

Dozens of examples exist of this defense being used by lawyers in recent years. In 2018, a Texas attorney argued that his client, James Miller, who was charged with killing his male neighbor, Daniel Spencer, was acting in self-defense following unwanted sexual advances, resulting in Miller being convicted of the state's lowest grade felony and being sentenced to only six months in jail.

Perhaps one of the most high-profile uses of the gay panic defense was during the trial of one of Matthew Shepard's killers. In 1995, Aaron McKinney tried to use a gay panic defense, but the judge in the case would not allow it to be deployed.

Federal bills banning the gay and trans panic defense have been introduced since 2018, but all have died in committee. A total of 16 states have banned the use of the defense, with over a dozen other legislatures considering bans. In the last several years there has been a flurry of bills that seek to outlaw gay and trans panic defenses, but the majority of states still allow this tactic to be deployed.

Pervasive Legal Strategy

Russell Henderson, 21, and Aaron McKinney, 22. Photograph: Ed Andrieski/AP
Russell Henderson, 21, and Aaron McKinney, 22. Photograph: Ed Andrieski/AP  (Source: Associated Press)

High-profile examples of the gay and trans panic defense have captured the imagination of the media and public alike. But, as there is no unified reporting of when this defense is used across the country, gaining a clear picture of the prevalence and exact usage of this practice is difficult for researchers.

A report published last year from the Williams Institute found gay and trans panic defenses have been used since the 1960s, with these defenses appearing in publicly reported court opinions in around half of American states.

Carsten Andresen, Associate Professor of Criminal Justice at St. Edward's University in Texas, tracks the use of gay and trans panic defenses, and seeks to understand how these have been used in recent years by defense teams.

His Comparing the Gay and Trans Panic Defense" study, published last year, explored 99 gay and trans panic defense cases which were used from 2000 to 2019. The study is believed to be the largest analysis of gay and trans panic defense murder cases. As Andresen started his research, he was startled that a defense like this existed in the first place.

"I've been in this field for about 20 years, maybe I should know better, but I just thought when you went to court that everybody was on their best behavior and very civilized," Says Andresen. "It's just so blatant that you would see defense attorneys saying these horrific things they can't really support."

The trans panic defenses are almost exclusively used against women of color, while gay panic victims are for the most part white. In about 30% to 40% of cases where a gay or trans panic defense has been used, there is a reduction in the charge. In practice, this may be a reduction from first-degree murder to second-degree murder. In 8% of cases, people are acquitted.

Andresen mentions that some people who have read his work have asked him, "If only 8% of cases see an acquittal, why is this such a big deal?" "But this narrative hangs around that gay men are predatory, and that trans women are trying to fool a man into having sex with them. These narratives cast the defendant as a victim."

During his research, Andresen noticed how defense attorneys in recent years have shifted their deployment of the gay and trans panic defense. "After looking at all of these cases from the last four years, defense attorneys are now being very careful to not explicitly say they are using the gay or trans panic defense. They are actively trying to get away from that language," he explains.

Now, defense attorneys are more likely to center their case around self-defense and tell the jury to consider their reaction if the defendant was a woman. "This can happen where the lawyer of a man who brutally killed somebody who was allegedly gay will say this isn't about homophobia or bigotry, but pure and simply about self-defense, saying, 'If a woman was about to be raped, we wouldn't be having this conversation," adds Andresen.

The attempt to use the gay and trans panic defense without explicitly stating it is a sign that the use of this practice is becoming increasingly toxic for defense attorneys. Subtle and coded language can still have the same effect, and raises the same objections and concerns as the conventional use of this defense.

"[Defense attorneys] do not like being branded as somebody who is using a bigoted defense — they want to try to escape the attention of that. I'm sure that they don't want to come in front of a judge and the judge says, 'I'm gonna be on the front page of 50 national newspapers because you have done this,' " he adds.

Ethical Conduct?

A map from the website LGBTQ+Bar. Red states are states where anti-trans defense legislation has been passed and teal states are states where legislation has been introduced.
A map from the website LGBTQ+Bar. Red states are states where anti-trans defense legislation has been passed and teal states are states where legislation has been introduced.  

The role of a defense attorney is to act as an advocate for the accused and protect the client's best interests. But these lawyers also have ethical obligations related to their membership in a bar association or their personal moral standards. As far back as 2013, The American Bar Association (ABA) unanimously approved a resolution, introduced by the LGBTQ+ Bar, calling for an end to the gay and trans panic defense.

"Speaking personally as a lesbian lawyer, I am outraged that someone could use force against me, for no reason at all, except to say that they were so freaked out that they are not responsible for their violence," says D'Arcy Kemnitz, executive director of The LGBTQ+ Bar, a national association of LGBTQ+ lawyers, judges, and other legal professionals. "It is simply unconscionable that this defense can still be used in so many state jurisdictions and in federal cases."

The exact deployment of the gay and trans panic defense varies case by case. One of the most pernicious defenses occurs when the defendant says they suffered a nervous breakdown after being sexually propositioned by their allegedly gay or trans victim.

This defense of insanity or diminished capacity relies on a debunked psychological term called "gay panic disorder," which the American Psychiatric Association removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973. Yet, while no longer recognized by any reputable medical body, states that haven't banned the defense allow lawyers to deploy this outdated argument.

Defendants may also use the defense of provocation that argues an allegedly gay or trans victim made a proposition, sometimes termed a "non-violent sexual advance," that was "provocative" and led the defendant to kill the victim. Claims of such "provocation" are only targeted towards LGBTQ people, and can attempt to capitalize on anti-LGBTQ attitudes.

Perhaps the most commonly used defense in these cases is that of self-defense. Defendants claim that, directly due to the sexual orientation or gender identity of a victim, they had to defend themselves from serious bodily harm. Despite this defense arguing that solely due to a person's gender or sexual identity they are a threat to someone's safety, this defense is still used.

"The only comprehensive way to show support for the LGBTQ community is by enacting federal-level protections that will save lives from violence. We urge the community to educate their state and federal legislators to ban the gay/trans panic defense," adds Kemnitz.

Grassroots Action

Mother Lisa Woods and her daughter, the late Nikki Kuhnhausen
Mother Lisa Woods and her daughter, the late Nikki Kuhnhausen  

As with virtually all previous LGBTQ rights issues from Stonewall to marriage equality, grassroots activists and community organizers have played an essential role in driving politicians to take action on banning the gay and trans panic defense.

When Nikki Kuhnhausen, 17, went missing in June 2019, her family filed a missing person report and the search for her began. Months later, her fractured skull was discovered in Oregon in a woodland. Soon after, David Bogdanov, 27, was accused by prosecutors of her murder, claiming that he met Kuhnhausen in Vancouver, a city in Washington, before strangling her with a phone charger cable after they had sex.

When the case went to trial, Bogdanov claimed he acted in self-defense to stop Kuhnhausen from reaching for a gun. A detective that worked on the case, David Jensen, presented evidence that he claims shows that once Bogdanov realized Kuhnhausen was trans, he quickly became enraged and killed her.

After Nikki's remains were found, a grassroots group of activists, transgender community members, and parents of trans youth started a task force to support Lisa Woods, Nikki's mother, through the justice process and ensure a hate crime charge was added to David Bogdanov's charges.

There had been a bill being considered in Washington that would outlaw gay and trans panic defenses, but it stalled on the house floor before Nikki went missing. Linden Walls, media representative at Justice for Nikki, a national, grass roots movement to achieve justice, recalls how many politicians didn't see a need for the bill, as they said there had not been any murder cases in the state of Washington with the alleged perpetrator trying to use a gay or trans panic defense.

"Then, after Nikki passed, Sharon Wiley (a Democratic representative from Clark County) picked the bill back up, naming it for the victim. Wiley was obviously heartbroken by the story, and picked up the torch and allowed us to come alongside her," they add.

Walls was with Lisa when Nikki's mother made her statement to the committee for the house, right before the Nikki Kuhnhausen Act went to vote. They also attended the bill signing with Washington Governor Jay Inslee.

On September 9th, 2021, David Bogdanov was sentenced to nineteen and a half years in prison for the murder of Nikki Kuhnhausen. The judge in the case, Judge David Gregerson, said before the sentencing that he was "struck by the darkness in this case... everyone in this courtroom has been 17 at some point in their lives. She could've been anyone's son or daughter," according to local newspaper The Columbian.

While the rising rates of violence and murder against trans people, particularly trans women of color, are receiving more coverage by media organizations, a relatively scant amount of attention is paid to cases of gay and trans panic defenses.

"I don't think that the general public understands how impactful these events are," Walls says. "As I go throughout the community and talk about the Nikki Kuhnhausen Act, often people are like, 'Wait, that's actually a defense that people could have used?' "

Adds Walls: "People are often shocked that it's even possible, but don't realize that there's no legislation that protects a person from it being used. Culturally, they don't understand the safety impact on the trans community, particularly trans women of color."

The optimistic and hopeful part of Walls says that these type of defenses will become a thing of the past over time, paralleling the positive social change that has already happened over many years.

"There's always growth, whether it's at a slow rate or a fast rate. The faster it happens, the faster we are able to keep other trans kids safe and we're able to keep people from experiencing these deeply traumatic events," they conclude.

Finbarr Toesland is an award-winning journalist who is committed to illuminating vital LGBTQ+ stories and underreported issues. His journalism has been published by NBC News, BBC, Reuters, VICE, HuffPost, and The Telegraph.