25.7 - Outrage of the Week: "gay panic" still a legal defense in 48 states

Outrage of the Week: "gay panic" still a legal defense in 48 states

Now for our other regular feature, this is the Outrage of the Week.

Here's some news: About two weeks ago, the Illinois legislature approved passed a bill, which Governor Bruce Rauner has indicated he will sign, to ban the use of so-called "gay panic" and "trans panic" as defenses against charges of physical violence such as assault or worse.

The idea behind these defenses is that for the defendant it was so shocking, so utterly horrifying, to discover that the person they were dealing with or, in the case of trans panic, maybe even had sex with, discovering that that person is gay or transgender, that that is so shocking, that the accused just lost control of themselves, they were traumatized, they panicked, to a point where they could not be held responsible for their actions.

Now Illinois is banning use of that as a defense.

So why is it here under the Outrage of the Week instead of Good News?

Because Illinois is only the second state - California being the other - to have done so. In 48 states, "gay panic" and "trans panic" are still valid legal defenses.

In 48 states it is legal to use a victim's gender or sexual identity to justify violence against them, even murder.

In 48 states it is legally acceptable to plead, in effect, "not guilty by reason of the victim was gay or transgender."

This doesn't mean such defenses succeed, in fact, they usually fail. But they remain legal despite the fact that the ABA came out against their use four years ago.

And worse, the handful of other places that have recently tried to ban these defenses - Pennsylvania, New Jersey, and Washington, DC - have failed to get the legislation passed.

Pennsylvania representative Michael Schlossberg, who introduced his state's legislation, summed it up well: "How in God's name," he said, "could [panic defenses] be real in the 21st century?"

Yes, we have come far on issues of gender and sexual identity, farther than I would have imagined 10 years ago. But that doesn't change the fact that too much of our legal structure still has to be dragged kicking and screaming out of the prejudices of decades gone by. And that is an outrage.