New Jersey bans LGBTQ panic defense

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Court Justice

The gay panic defense is used by defendants to justify anti-gay/trans crimes

New Jersey has become the latest state to outlaw a horrendous defense strategy known as LGBTQ panic defense. The defense has been used for those accused of murder to try and justify their actions resulting in the death of a member of the LGBTQ community. The Garden State joins California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, and New York in banning the defense.

Joann Downey (D-Monmouth)
“The so-called ‘gay panic defense’ or ‘trans panic defense’ has never been more than a transparent attempt to allow the assault or murder of LGBTQ individuals,” said bill sponsor Joann Downey (D-Monmouth)

The LGBTQ panic defense, originally called gay/trans panic defense, is a legal strategy that appeals to juries to find that a victim’s sexual orientation or gender identity/expression are to blame for the defendant’s violence toward that person. It claims that the victim’s sexual orientation or gender identity explains and excuses a loss of control on behalf of the defendant. The implication of this defense, most notably used by the defendants in the Matthew Shepard murder trial, is that LGBTQ lives don’t matter as much. Though the LGBTQ panic defense isn’t a freestanding defense, it is used to bolster other defenses: defense of insanity or diminished capacity, defense of provocation, and defense of self-defense.

In the United States, the LGBTQ community makes up an estimated 4.5 percent of the population, or about 14.6 million people. However, hate crime statistics from the FBI show that this community is disproportionately target of violent assaults and murder. Research has shown that one out of five LGBTQ people will experience a hate crime in their lifetime while one out of four transgender people will.

The New Jersey legislature passed the ban unanimously, sending it to Governor Phil Murphy’s desk before the end of 2019.

“The so-called ‘gay panic defense’ or ‘trans panic defense’ has never been more than a transparent attempt to allow the assault or murder of LGBTQ individuals to happen with impunity, and it is long past time that we ended this dark chapter in American legal history,” said bill sponsor Joann Downey (D-Monmouth) in a statement.

Wilfredo Sanchez and Pedro Garcia were the most recent defendants to try and use the LGBTQ panic defense for the 2011 murder of Francisco Gonzalez Fuentes. The pair from Cliffside Park beat and stabbed Fuentes to death before dismembering him and scattering the remains in trash bags. Sanchez claimed that Fuentes tried to sexually assault him as he slept at the man’s apartment following a party. Garcia, a longtime friend and roommate of Fuentes who was described as the victim’s boyfriend by prosecutors, claimed that his fear of being identified as gay is what triggered his rage. Garcia was sentenced to 60 years in prison and lost an appeal in 2018 while Sanchez, who lost an appeal in 2016, was sentenced to life in prison.

Assemblyman Jon McKeon (D-Essex)
“The ‘gay panic or trans panic’ defense is not a freestanding defense to criminal liability, but rather a legal tactic,” said Assemblyman Jon McKeon (D-Essex)

In 1954, the defendants in the murder of William T. Simpson in North Miami, Florida claimed they shot Simpson, who was gay, while “resisting his advances.” The defendants, who were known criminals in the area that targeted homosexual victims, were convicted of manslaughter rather than first-degree murder. In 1998, Jonathan Schmitz murdered Scott Amedure after the latter revealed he had a crush on Schmitz on the Jenny Jones Show. After an evening out, Amedure left a provocative note for Schmitz, which was cited in Schmitz’s defense. He was convicted of second-degree murder rather than first-degree. Also in 1998, the defendants in the murder of college student Matthew Shepard attempted to use a panic defense to justify the torture and murder of Shepard. They claimed that Shepard’s proposition in a bar drove them to murder by “irresistible impulse.” In the state of Wyoming, “irresistible impulse” is not a defense allowed under statutory insanity defense, making the LGBTQ panic defense inadmissible by state law.

“The ‘gay panic or trans panic’ defense is not a freestanding defense to criminal liability, but rather a legal tactic,” said Assemblyman Jon McKeon (D-Essex), the bill’s other sponsor, in a statement. “It’s used to diminish the reason for a defendant’s violent reaction that asks a jury to find a victim’s sexual orientation or gender/expression as the cause. Whether the person was gay, transgender or heterosexual, sexual orientation should not have any bearing on determining a person’s guilt in a murder trial. It is prejudiced against the LGBTQ community.”

Seven states have LGBTQ panic bans in legislative committee for consideration in 2020. They are Washington State, New Mexico, Texas, Minnesota, Pennsylvania, Massachusetts, and the District of Columbia. At the federal level, the Equality Act, has been introduced for consideration. That would ban the LGBTQ panic defense nationwide.