Dec 10, 2019

AUSTIN, Texas—In 2015 in Austin, Texas, a 30-year-old film editor named Daniel Spencer invited his neighbor James Miller, a retired city employee in his 60s, to his home to play music and drink.

But what started as a casual evening turned deadly. Miller claimed that Spencer tried to kiss him and then became aggressive when he was rebuffed, causing Miller to stab him to death in self-defense.  

The case drew national headlines and LGBTQ advocates said Miller’s defense attorney used a controversial legal tactic called the ‘gay panic’ defense to get Miller a lighter sentence. Instead of two to 20 years for the original charge of manslaughter, Miller received six months in jail and 10 years of probation for negligent homicide.

This was one of three distinct murder cases in Austin involving the gay or trans panic defense, which justifies a defendant’s violence by blaming the victim’s sexuality or gender identity. The cases caught the attention of Carsten Andresen, assistant professor of Criminal Justice at St. Edward’s University.

“In two of the three cases, the murder defendants received a reduced penalty,” Andresen said. “In my opinion, justice was not done.”

In his role as researcher, Andresen is now analyzing how murder cases involving the gay or trans panic defense are unfolding in courtrooms across the country and what the legal outcomes are for defendants. What he has found is that the defense can be successful at swaying the jury’s sympathy, lessening a defendant’s charges or shortening a sentence. 

Andresen has published a paper on the topic, and spoken to various professional associations, including the State Bar of Texas, about his findings. He recently sat down with a journalist from the podcast Criminal, an independent podcast, to share his insights.

Below is an excerpt from the interview:

Criminal: Even though it’s referred to as the gay panic defense, it’s more of a tactic used to bolster other criminal law defenses. There are four main ways someone uses it. The first is part of an insanity defense.

Andresen: Someone says I murdered this person because they made a pass or overture at me, and that pass or overture was so threatening to me that I lost mind, lost my sanity temporarily, and I killed that person.

The second one is diminished capacity and that is a case where somebody is maybe depressed. And what they would say is that this person made a pass at me, and when they made a pass at me it took my fragile state of mind and temporarily pushed it over the edge and I killed that person.

Criminal: Gay panic has also been used as part of a self-defense argument.

Andresen: Basically, they’ll say this individual is a very sexually aggressive person, they were trying to sexually assault my client.

Criminal: The fourth way a gay or trans panic defense is used is part of a provocation defense.

Listen to the “Panic Defense” episode here.