Late last week, the Washington D.C. Council voted unanimously to approve banning the ‘gay panic’ defense in criminal courts, a defense commonly used for decades to excuse the motivating factors for crimes such as assault, threats and murder against members of the LGBTQ community, the Washington Blade reports.
While this is a step forward for the city, advocates argue there is more work to be done at the state and federal level, according to LGBTQ Nation.
Commentary in the New Jersey Law Journal explains the “gay and trans panic” defense is commonly used when someone who killed another person inappropriately blames the victim by suggesting to the jury that the victim “had it coming” simply because of their sexual identity.
This defense is often used to excuse murder charges, where the defense attorney will argue that their client was the target of an advance by someone who is LGBTQ, and they became so panicked or enraged that they couldn’t be held accountable for their violent actions.
The D.C. bill was named after two locals, Bella Evangelista and Tony Hunter, a trans woman and a gay man, who were both killed by perpetrators attempting to claim their rage came from panic.
Evangelista was shot and killed by someone she was having relations with in 2003, who claimed he didn’t realize she was transgender when he paid her for sexual acts. Hunter was attacked and killed in 2008 while walking to a gay bar. A witness to Hunter’s murder said the perpetrator noted that the victim “appeared to be gay” before lashing out.
Despite the gay-panic defense, Evangelista’s killer, Antoine Jacobs, was sentenced to serve 16 years for her death. To that end, the defense worked in the case of Hunter’s killer, Robert Hannah, who plead guilty to misdemeanor assault and served just six months in jail, according to NBC Washington and Metro Weekly.
‘More Must Be Done’
This self-defense “gay-panic” tactic has been accepted for decades, according to LGBTQ Nation, but the full extent isn’t known, since the U.S. does not collect information about a victim’s sexual orientation, according to W. Carsten Andersen, an assistant professor of Criminal Justice at St. Edward’s University, and a researcher of the gay-panic defense.
In an interview with journalists at the Conversation, Anderson noted that there is no database of cases where the gay-panic defense has been used in court.
Anderson’s early analysis has found that defense attorneys who enter gay panic defenses can reduce defendants’ murder charges 32 percent of the time, “even though the majority of these homicides involve incredible violence.”
Anecdotally, recognizing the implicit bias in this defense tactic, states and judges have started to disallow the practice.
California, New York, Illinois, Nevada, Washington, Maine, Rhode Island, and Colorado have all banned the panic defense, with New Jersey being the newest addition in 2020, making it 9 states total to uphold the ban.
New Jersey Gov. Phil Murphy signed a bill in January prohibiting it as a defense for murder. He declared, “Under this law, a defendant [is] prohibited from using a victim’s actual or perceived gender identity or expression or affectional or sexual orientation as a heat of passion defense to murder in New Jersey courts,” as quoted in the New Jersey Law Journal.
Gov. Murphy concluded that the strategy is “rooted in homophobia.”
The Maryland legislature may not be far behind, the Washington Blade reports, considering their legislature approved a bill earlier this year to make changes to their hate crime statutes to disallow the “gay-panic” tactic.
The American Bar Association also condemned the use of the “gay-panic” defense in 2013, despite the fact that 39 states still allow the tactic to be used in criminal cases.
In 2018, Representative Joe Kennedy of the U.S. House and Senator Edward Markey proposed a nationwide ban on the defense tactic, but the bill remains stalled.
Andrea Cipriano is a TCR staff writer.