New York State Bans Sex-Based “Panic Defenses” to Murder

New York has by legislation disallowed the so-called gay or trans “panic defenses” to murder charges, in which defendants argue their legal responsibility should be lessened due to the killer’s revulsion at the victim’s sexual or gender identity.

The legislature easily passed, and on June 30, Gov. Andrew Cuomo signed into law S. 6573, which amends state penal law, by removing from an affirmative homicide defense available for “extreme emotional disturbance” any defendant’s conduct that results from the “discovery, knowledge or disclosure” of the victim’s sex, sexual orientation, gender identity or expression.

In a signing message, Cuomo called the defense “essentially a codification of homophobia and transphobia,” which is “repugnant to our values of equality and inclusion.” The bill’s sponsors point to cases, like the brutal beating murder of Wyoming gay college student Matthew Shepard in 1998; his two attackers said they had merely intended to rob him, but became infuriated when he made a pass at one of them.

The defense has been used sporadically for over 50 years, and has on occasion resulted in convictions on lesser charges (for example, manslaughter instead of murder, or brought a significantly more lenient sentence). Although removed in 1973 from the American Psychiatric Association’s standard reference work Diagnostic and Statistical Manual of Mental Disorders (or DSM), gay panic had been recognized for years as a diagnosis there.

How have the defenses or gay or trans panic played out in cases where a defendant tried to use them against criminal charges? Sometimes the defense will argue the victim’s conduct (such as an unwelcome sexual pass) caused the defendant to use force to ward it off. On other occasions, a defendant will argue that the victim’s behavior, gender identity or sexual nature cause either such rage or panic in the defendant that it triggered temporary mental confusion or even diminished mental capacity to deal with the situation.

Leaders in the gay community protest the defense plays on jury bias against the victim, who is essentially blamed for having provoked the harm experienced, and stems from the assumption that gay and trans lives are less valuable than those of persons charged with crimes against them.

The sponsors of the new law adopted by New York said the defense reflected bigotry and should never be allowed. The American Bar Association House of Delegates in 2013 unanimously adopted a resolution urging the defense be banned.

The next year, California became the first state to do so, followed by Illinois, Rhode Island, Nevada, Connecticut, and Maine. Hawaii’s governor signed into law a bill removing the gay/trans panic defense the day after Gov. Cuomo did.

Bills to outlaw the defense have also been introduced in a number of other states and the District of Columbia, and a federal bill was introduced in both the previous and the current Congress. Both times the “Gay and Trans Panic Defense Prohibition Act” (now S. 1721) was offered in the Senate by Edward Markey (D-MA); the House counterpart (H.R. 3133) was introduced by Rep. Edward P. Kennedy III, rumored to be eyeing a primary challenge to Sen. Markey in 2020.

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