Under Kentucky's 'gay panic' defense, victim's sexuality is seen as justification for murder

If you’re charged with murdering someone who is queer or trans in Kentucky, you may have a powerful legal defense on your side. Kentucky is one of a plethora of states that allows for you to excuse that murder on the basis that your violence was a justified reaction to the victim’s sexual orientation or gender identity.

That may sound outrageous, because it is. It's also true.

It's called the "gay panic defense" and it is nothing new in America’s legal system. Thankfully, it is on a rapid decline. In the past decade, 17 states have expressly banned the use of the gay panic defense. This year alone, both New Hampshire and Delaware joined those states in outlawing the defense.

Why hasn't Kentucky outlawed the gay panic defense to murder charges?

The gay panic defense relies on the assumption that it is reasonable for a perpetrator to react violently to discovering a victim’s sexual orientation or gender identity or in responding to a romantic advance by a queer or trans person. The defense has allowed for individuals accused of murder to have their charges and sentences reduced because of their “justification” for responding violently to the knowledge that an individual identifies as LGBTQ+.

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The gay panic defense is not a passive and never-before-used legal tactic. Since the 1960s, the defense has been frequently used in court opinions in roughly half of the states.

The gay panic defense has been used in Kentucky to excuse the murders of queer people. In the summer of 2003, Joshua Cottrell lured Guin “Richie” Phillips, a 36-year-old gay man, into an Elizabethtown hotel room, where he was brutally murdered. Phillips' body was found days later in a suitcase that was dumped into Rough River Lake.

Kentucky has permitted sexual identity as justification for murder

After Cottrell’s lawyers invoked the gay panic defense at trial, arguing that Cottrell was justified in responding violently to Phillips’ alleged romantic advance at the hotel, the jury rejected the murder charge and instead found Cottrell guilty of a lesser charge: second degree manslaughter. Cottrell was sentenced to 20 years for his killing of Phillips, but was eligible for parole merely two-and-a-half years after his conviction.

Beyond the devastating influence of the gay panic defense in excusing the murders of queer and trans civilians, the defense sends a clear message that an individual’s sexual orientation or gender identity is a valid basis to justify violence.

By continuing to allow for the gay panic defense to be a valid legal excuse under Kentucky state law, Kentucky’s legislature sends a message to our LGBTQ+ community that our identities are worthy of rejection, cruelty and violence.

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But for those witnessing the ever-expanding anti-LGBTQ+ agenda of Kentucky’s conservative state lawmakers, it is no surprise that nothing has been done to address the gay panic defense.

Kentucky’s lawmaker’s proudly overrode Gov. Andy Beshear’s veto of Senate Bill 150 and allowed the bill to become law. The bill bans all gender-affirming medical care for trans youth and permits teachers to openly misgender and discriminate against students.

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Against this backdrop, it is no wonder that so many within Kentucky’s LGBTQ+ community remain pessimistic about the prospect of prohibiting the use of the gay panic defense.

It is nonetheless crucial that we continue to call out Kentucky's lawmakers for their inaction on banning a malicious legal tactic that excuses violence against queer and trans people in the state.

And hope may be found in the re-election of Gov. Beshear, who has been a noteworthy champion for LGBTQ+ Kentuckians in his advocacy to ban conversion therapy and vetoing legislation that attacks members of our community. With his final term approaching, Beshear has the unique opportunity to build on his pro-equality legacy and call on Kentucky’s legislature to join the growing number of states in rejecting the gay panic defense, an issue that has avoided the political spotlight.

Although the prospects of banning the defense with a conservative super-majority in Kentucky’s legislature remains disturbingly slim, we owe it to past, present, and future victims of sexuality- and gender-motivated crimes to call for an end to a defense that skirts justice where it is needed most.

Until then, as more and more states rid themselves of the gay panic defense, Kentucky will unfortunately remain at the tail-end of progress for LGBTQ+ equality.

Robert Blake Watson is a native of Louisville, Kentucky, and a graduate of the University of Pennsylvania Law School.

This article originally appeared on Louisville Courier Journal: Can you kill someone for being gay? KY says 'panic defense' is valid