The “Gay Panic” Defense: Outlawed In New York

August 12, 2020

By Jill K. Sanders, Esq.

In the summer of 2019, New York became one of several states to ban “gay panic” defenses in homicide cases. Now, defendants cannot defend against a murder charge by claiming they were under extreme emotional disturbance at discovering the victim’s gender or sexual orientation. This legislation removes a defense that is not supported by science and which places blame on victims for their sexual orientation or gender identity.


What are “Gay Panic” Defenses?

In general, the “gay panic” defenses includes three variations:

  • Diminished capacity, extreme emotional disturbance, or insanity – The defendant was temporarily not in control of his/her actions upon discovering the victim’s gender or sexual orientation.
  • Provocation – The victim’s actions provoked the defendant into killing the victim.
  • Self-defense – The victim was about to cause the defendant serious bodily harm.

An example of a “gay panic” defense was shown in the recent Netflix documentary series Trial By Media. The series discussed the case of Jonathan Schmitz, who killed his friend Scott Amedure in 1995 in Michigan. Amedure confessed on The Jenny Jones Show that he was sexually attracted to Schmitz. Thereafter, Amedure and Schmitz met and discussed the situation, and Amedure left Schmitz an amorous note. Three days after the taping of the show, Schmitz went to Amedure’s home and shot him twice in the chest. Schmitz confessed to the murder, and at trial argued he committed the homicide because of his mental illness and due to humiliation from Amedure’s confession. After trial, Schmitz was convicted of second-degree murder rather than first-degree.


New York Cases Using the “Gay Panic” Defense

In New York in 1944, Lucien Carr stabbed David Kammerer and dumped his body in the Hudson River. He claimed that Kammerer had been following him for years and had made “indecent” advances. This was considered by many to be an appropriate response to Carr believing Kammerer was gay and wanted to engage in sexual acts. While he was originally charged with murder, prosecutors conveyed a plea offer to Carr of manslaughter. He pled guilty and served only two years in a reformatory.

More recently, in 2013, James Dixon pled guilty to manslaughter for murdering Islan Nettles, a transgender woman. He received a 12-year prison sentence. He told police he had flown into a “fury” after finding out that Nettles was transgender after he had been flirting with her. Many argue the manslaughter offer was based in part on Dixon’s “transgender panic” defense.


How Did the Defense Work in New York?

New York Penal Law Article 125 provides for an extreme emotional disturbance defense. The defendant must show he/she acted under the influence of extreme emotional disturbance. This means he/she he was so emotionally disturbed that he/she actually lost control. The defendant must also show that there was a “reasonable explanation or excuse” for this emotional disturbance. Prior to the 2019 ban in New York, defendants charged with homicide could argue extreme emotional disturbance in discovering their victim’s sex, sexual orientation, or gender identity.

Now, with the “gay panic” defense ban, defendants can no longer argue that this is a reasonable excuse for their extreme emotional disturbance. Note, however, the legislation leaves in place a defendant’s ability claim his/her own past trauma as a reason to experience extreme emotional disturbance to a victim’s conduct.