The “gay and trans panic” defense for homicide would no longer be allowed in New York’s courts under a bill approved Wednesday by the state Assembly. New York Gov. Andrew Cuomo (D) suggested he would sign the measure, which was one of his top priorities for the legislative session.
The bill, sponsored by Assemblyman Daniel O’Donnell (D), establishes that perpetrators can no longer justify their crimes as a response of “extreme emotional distress” to a victim’s sexual orientation, sex, gender, gender identity, gender expression or sex assigned at birth.
The legislation would close a loophole in current law by clarifying that a violent homophobic or transphobic response to victim’s gender or sexual identity does not justify homicide.
“As long as I, as a gay man, can be blamed for my own murder or assault, I personally will never have equality under the law,” Seth Rosen, director of development at the National LGBT Bar Association, a legal association advocating for justice for the LGBTQ community, told HuffPost. “Frankly, this victimizes all queer people. First, they have the assault against them, or the murder, and then, in court, they are blamed for the violence against them.”
As long as I, as a gay man, can be blamed for my own murder or assault, I personally will never have equality under the law. Seth Rosen, director of development, National LGBT Bar Association
The “gay and trans panic” defense has appeared in courts since the 1960s and is still legal in 45 states, according to ABC News. There is now a nationwide push to change those laws. California banned the “panic” defense in 2014, followed by Illinois, Nevada, Rhode Island and, last week, Connecticut. Legislation with similar goals has been proposed in over half a dozen other states, including Washington and Texas.
Rosen said he thinks there will be a “ripple effect” and that more bills will arise as the “panic” defense laws gain more attention.
O’Donnell, a former public defender, told the New York Law Journal that he received some opposition to his bill from criminal defense attorneys. “Although I’m getting a lot of pushback from the criminal defense community I come out of, the truth is being gay or trans is not a deathworthy offense,” O’Donnell said.
Cuomo previously tweeted his support of the bill on July 11, urging lawmakers to act. In a Monday radio interview, the governor indicated he had reached an agreement with both houses of the legislature. The New York State Senate passed a different version of the bill last week.
The “panic” defense gained national attention in 1998 when two men brutally killed 21-year-old Matthew Shepard. The murderers adopted the defense, claiming they were reacting to Shepard’s sexual advances. The judge rejected the defense, but it continues to be used.
Opposition the defense tactic began brewing in 2013 when the American Bar Association voted in favor of urging federal, state and local governments to curtail the “availability and effectiveness” of the “panic” defense.
In July 2018, Sen. Edward J. Markey (D-Mass.) and Rep. Joseph Kennedy III (D-Mass.) introduced the Gay and Trans Panic Defense Prohibition Act of 2018, seeking to ban the defense at the federal level. The bill failed, but lawmakers reintroduced it earlier this month.
“Murdering or assaulting anyone because of their sexual orientation or gender identity is not a defense, it is a hate crime,” Kennedy said in a statement at the time of the bill’s first introduction.
UPDATE: July 1 — Cuomo signed the bill banning the “panic” defense into law on June 30 during WorldPride.