D.C. Moves to Ban 'Gay Panic' Defense

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By Christopher Coble, Esq. on September 23, 2019 6:00 AM

There are all kinds of defenses you could claim for certain crimes. Some are pretty basic, like "you got the wrong guy," or "it was an accident." Some are a bit more complicated and depend on the nature of the crime and the victim. The "heat of passion," which argues that a person in a sexual relationship was so blinded by jealousy that they couldn't help but commit a crime like assault or murder. Such defenses don't always exonerate a defendant, but they may lead to lesser charges.

A related defense, though based on bigotry, is the so-called "gay panic" defense. Although not a complete defense to criminal liability, the gay panic defense asks for a defendant's behavior (including assault and murder) to be partially excused based on the victim's LGBT status. Several states have been passing legislation that bars defendant's from claiming gay panic as a defense, and the District of Columbia is currently considering two such bills right now.

Discrimination and Legal Defenses

As described by the LGBT Bar:

The LGBTQ+ panic defense strategy (also called the "gay panic defense" or "trans panic defense") is a legal strategy that asks a jury to find that a victim's sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder. It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses. When a perpetrator uses an LGBTQ+ panic defense, they are claiming that a victim’s sexual orientation or gender identity not only explains -- but excuses -- a loss of self-control and the subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others.

The defense was unsuccessfully employed by one of Matthew Shepard's attackers, who claimed Shepard made sexual advances that sent him into a rage. The LGBT Bar notes that the panic defense has been used to lessen charges in similar cases, and when defendants have discovered a victim's transgender status.

Panic at the D.C.

Thus far, California, Connecticut, Hawaii, Illinois, Maine, Nevada, New York, and Rhode Island have already banned the gay panic defense or trans panic defense, and a few other states are considering bills to do the same. The D.C. Council is looking at two similar bills:

  1. The Tony Hunter and Bella Evangelista Panic Defense Prohibition Act of 2019, which would ban curtails using "a defense that is premised on bias against lesbian, gay, bisexual or transgender individuals" based on 20 protected traits in the D.C. Human Rights Act; and
  2. The Sexual Orientation and Gender Identity Panic Defense Prohibition Act of 2019, which is slightly more narrowly tailored.

Hearings on both bills are expected next month.

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