Thirty-nine states have no protections against LGBTQ+ panic defenses in court, and Arizona is one of them.
An LGBTQ+ panic defense, known also as gay/trans panic, is defined by the LGBTQ+ Bar Association 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.”
While “not a free-standing defense to criminal liability,” it is used as a “legal tactic used to bolster other defenses,” such as insanity, provocation, self-defense, and has been utilized to justify hate crimes by excusing the defendant’s “loss of control and subsequent assault.”
A 2020 study by criminal justice scholar W. Carsten Andresen revealed that almost one-third of defendants nationwide who used LGBTQ+ panic defenses had their charges reduced.
One of the most notable examples of this ploy was when the killers of Matthew Shepard, a 21 year-old gay man, had their day in court after torturing and murdering Shepard in Laramie, Wyoming. One of the two men attempted an LGBTQ+ panic defense but was rejected by the judge.
While 15 states have made measures to ban LGBTQ+ panic defenses after the American Bar Association issued a resolution in 2013, Arizona has no law in place to prevent this discriminatory legal strategy from being used in court.
In a 2020 USAToday ranking of US states and their LGBTQ protections, Arizona (with LGBTQ+ people making up 4.5 percent of the population, the 12th highest in the states) was ranked 34th out of 50.
USAToday says Arizona currently has “no statewide laws preventing discrimination in employment, education, or housing against LGBTQ people” (save for 5 cities) nor does it have “legislation ensuring that transgender people are included in state Medicaid or that they cannot be banned from insurance.” LGBTQ+ youth are especially vulnerable, lacking “legally mandated inclusive sex education in schools and protection from conversion therapy.”
“The intent is to protect homophobia and protect those folks who engage in homophobic behavior and homophobic violence and to criminalize gay people, and queer people, for just being,” said Marlon Bailey, an associate professor at Arizona State University’s School of Social Transformation, explaining that LGBTQ+ panic defenses are evidence of “structural homophobia.” Bailey continued, “[Lawmakers] don’t want to alienate their homophobic constituents… Let’s just be crystal clear, this is a homophobic law.”
According to the aforementioned study, two Arizona defendants since 1970 have attempted to use LGBTQ+ panic defenses to reduce their sentences or receive acquittal, and in 2020, the Department of Justice reported that 34 hate crimes were committed on the basis of sexual orientation in Arizona. On the basis of gender and gender identity, Arizona saw 8 hate crimes in 2020.
“We will continue to fight for LGBT+ inclusive policies in every aspect until we accomplish success,” Arizona Representative and member of the LGBTQ Caucus César Chávez (D-Phoenix) said in an email. “These policies are non-negotiable.”