Illinois Just Banned This Outdated Legal Defense for Murder

June 1st 2017

Mike Rothschild

This week, the Illinois Senate passed a bill that would make it just the second state in the United States to formally ban "gay panic" as a defense for murder; it would also ban "trans panic" as a defense. 

The bill, SB 1761, is one of three in the Illinois legislature to increase protection and representation for the LGBT community. It was unanimously passed by both chambers of the state legislatures, and the governor Bruce Rauner is expected to sign it.

When he does, Illinois will join California (who banned it in 2014) as the only states to prevent alleged murderers from justifying hate crimes in court by arguing that they were in fear of an unwanted sexual advance by someone of the same sex.

The "gay panic" defense is not a recognized legal strategy, but the term has been applied to a defense attorney who believes they can play on latent homophobia in juries by using an unwanted same-sex advances as the basis for saying their client feared for their life and became incapable of controlling their actions. 

The American Bar Association filed a resolution in 2013 asking for gay and trans panic defenses to be banned nationwide, claiming that gay and trans panic defenses "are surprisingly long-lived historical artifacts, remnants of a time when widespread public antipathy was the norm for lesbian, gay, bisexual, and transgender individuals."

"These defenses ask the jury to find that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction," the resolution continues. "They characterize sexual orientation and gender identity as objectively reasonable excuses for loss of self-control, and thereby mitigate a perpetrator’s culpability for harm done to LGBT individuals. By fully or partially excusing the perpetrators of crimes against LGBT victims, these defenses enshrine in the law the notion that LGBT lives are worth less than others."


While the term "homosexual panic" was coined in 1920 to denote "a panic due to the pressure of uncontrollable perverse sexual cravings," it wasn't used as a defense for murder until the 1967 case People vs. Rodriguez, where the defendant beat a man to death with a club after being grabbed from behind while urinating in an alley.

In that case, according to the Bar Association, Rodriguez claimed that when "the victim grabbed him from behind, [he] became temporarily insane due to an acute homosexual panic, which resulted in a violent, uncontrollable psychotic reaction."  The gay panic defense was rejected, and Rodriguez was convicted of murder.


One use of the "gay panic" defense that made international headlines was in 1995, when Scott Amedure appeared on the 90's talk show "The Jenny Jones Show" to confess his secret crush on his neighbor Jonathan Schmitz. Three days later after the TV show was taped (it never aired), Schmitz confronted Amedure and shot him twice. Claiming he'd been overcome by "gay panic," Schmitz argued he wasn't in control of his actions. The defense failed, and he was convicted of second degree murder.

Gay panic was also proposed as a defense in the murder of Matthew Shepard, the gay teen beaten, tortured, and left to die in a frozen field in Wyoming. Shepard's killers initially claimed that Shepard had made a sexual advance toward them, causing them to become overcome by rage to the point of not being able to control themselves. But the defense was disallowed by the presiding judge as a form of the insanity defense, which was barred in Wyoming.


In 2009, Chicago man Joseph Biedermann employed a form of gay panic defense when he was on trial for stabbing Terrance Hauser 61 times. According to NBC Chicago, "both men were at Hauser's apartment after a night of drinking. Biedermann claimed he passed out, and when he woke up, Hauser had a sword to his throat and was demanding that Biedermann take his clothes off. Biedermann said that started a fight in which he grabbed a dagger and stabbed Hauser repeatedly while trying to escape."

Biedermann claimed the stabbing was a matter of self-defense, and that he feared he was about to be raped by the other man. Despite prosecutors claiming there's no need to stab someone five dozen times even in self-defense, and that the room showed no signs of a struggle, Biedermann was acquitted. He later was found responsible for Hauser's death in a civil trial.

That defense, based on the victim's sexual orientation, will now be a thing of the past in Illinois, ending the stigma of homosexuality as a mental illness from which killers must defend themselves. Despite the Bar Association's call for it to be permanently banned in the U.S., only a few other states are considering such laws.