'Gay panic' defense still used in violence cases may be banned by new federal bill

The defense is sometimes used when people threatened by gay or trans people.

The night started like any other casual evening, with two Texas neighbors getting together to have a few drinks and play some music.

But the September 2015 visit took a violent turn. One of the men stabbed the other man -- who died from his injuries -- after an alleged sexual advance.

Daniel Spencer was found dead in his home the next day, after James Miller turned himself into police and gave a statement that alluded to the defense he would use later in court.

"We’re musicians and all that kind of stuff, but I’m not a gay guy," Miller told police later, The Austin American-Statesmen reported.

During the trial, Miller explained his actions using a "gay panic" defense that has been used since the 1960s in more than half of U.S. states, according to the Williams Institute at UCLA School of Law.

He said he was so shocked by Spencer's alleged sexual touch that it triggered him to fight in self-defense.

After the trial three years later, Miller was found guilty of the criminally negligent homicide of Spencer. According to The Austin American-Statesman, Miller faced between two and 10 years in prison.

However, a jury sentenced Miller to six months in jail, 10 years of probation and 100 hours of community service.

The use of gay panic and "trans panic" defenses continues to be legal in 47 states, although three states have outlawed it since 2014.

Now two Massachusetts lawmakers are trying to prevent the defense from being used in federal courts with a bill introduced in Congress last week.

Sen. Edward Markey and Rep. Joe Kennedy proposed the legislation in both houses of Congress prohibiting gay and trans panic defenses.

"Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it is a hate crime," Kennedy, who chairs the Congressional transgender equality task force, said in a statement announcing the proposed bill. "Legal loopholes written into our laws that seek to justify violent attacks against our gay, lesbian, bisexual, and transgender neighbors should never have existed in the first place."

Dan Black, the press secretary for Kennedy said that recent cases involving gay and trans panic defenses have highlighted the need for a federal ban.

Jason Marsden, the executive director of the Matthew Shepard Foundation, told ABC News that the proposed legislation is "particularly timely."

"There's an astonishing number of homicides and other attacks on trans persons," Marsden said, "and we're starting to see a trans panic defense trotted out in a number of cases."

One of the most high-profile cases that used a gay panic defense was the trial of the men who attacked gay college student Matthew Shepard and left him to die. One of the two men who tied the gay University of Wyoming student to a fence, after torturing and beating him, claimed that he was driven to violence when Shepard allegedly touched him on the knee.

There was also the case of Angie Zapata, a trans woman who was killed in Colorado in 2008. According to The Denver Post, Allen Andrade said he "snapped" when he learned that Zapata was transgender while the two were having sexual relations.

In court, Andrade's attorney argued that "this is a case about passion" and said that when Zapata "smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction," The Denver Post reported.

The attorney, Annette Kundelius, argued that Andrade's first degree murder charge should have been dropped to second degree murder, but the judge did not agree. Andrade was found guilty of first degree murder and hate crimes, among other charges, and was sentenced to life without parole.

Advocates say these panic defenses are rooted in homophobia and trans phobia.

The defenses are based on "the idea that violent vicious reactions to LGBT people are understandable because there's something about us that is so shocking and so horrifying that a violent reaction is to be understood," according to Jenny Pizer, the law and policy director of LGBTQ advocacy group Lambda Legal.

"It's a plea to the decision maker, 'Please understand my wrongful action is at least somewhat understandable because the shock and the emotional response is understandable,'" she added.

Only three states -- California, Illinois and Rhode Island -- have passed state laws banning the use of that defense in the states' criminal courts. Eight others have introduced similar legislation, but it's far from being law in most states.

The proposed federal legislation, if passed, wouldn't stop the use of these defenses in state-level criminal cases, but Pizer thinks that a change in federal law will help and could prompt a ripple effect among the states.

"Federal laws frequently establish norms or standards that are important for the country as a whole and guide states in following that example," she said, citing civil rights laws and hate crime laws as instances where federal legislation pre-dated the majority of state laws. "This bill follows in that important tradition."

A number of national legal groups and gay rights advocacy groups support the proposed legislation, including the American Bar Association, National LGBT Bar Association and GLAAD.

"Historically we have seen panic defenses used as a Trojan horse to attempt to bring societal prejudices and hatred against LGBTQ people, and especially transgender women and gay men, into courtrooms in an effort to justify types of violence that are simply never justifiable," Sue Yacka-Bible, communications director at GLAAD, told ABC News in a statement.

"Explicitly banning this practice will go a long way in protecting survivors and the friends and family of victims, as they engage with the criminal legal system at a deeply painful period of their lives," Yacka-Bible said.