LGBT Bar NY Applauds Gov Cuomo for Adding Amendment Banning Gay/Trans Panic Defenses

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Gov. Andrew Cuomo said he is putting a measure in his 30 day budget amendments to proactively ban the use of so-called trans-panic or gay-panic as a defense in cases where gay or transgender people are assaulted.

“This is terrific news. New York should join Illinois and California by banning harmful gay and trans “panic defenses. Said Eric Lesh, executive director of the LGBT Bar Association of New York. “We have lost too many members of our community to anti-LGBT violence. We applaud Governor Cuomo for taking this critical step. This will help ensure that those who commit violent acts are unable to manipulate the anti-LGBT biases of the public to escape justice for their crimes.”

In the past, those accused of killing other people who are transgender have tried to escape justice by blaming their victim — asserting that the discovery of their victim’s gender identity or sexual orientation justified the attack. Blame-shifting efforts like these have happened frequently enough that they have names: “gay panic” and “trans panic.” Neither “gay panic” nor “trans panic” is officially a defense to murder, but the terms describe defense strategies that try to bolster claims of insanity, self-defense and provocation.

While the use of the so-called “gay panic” and “trans panic” legal defenses are by no means common, they have been invoked with some success. According to the Williams Institute:“Since the 1960s, the gay and trans panic defenses have appeared in court opinions in approximately one-half of the states.

The numbers tracking the use of gay/trans panic defenses are low given that the Williams Institute can only count what appears in court opinions.

One of the most well-known instances where the gay panic defense was used (for those of us who remeber the 1990’s) came from The Jenny Jones Show. As I explained:

In 1995, lawyers for Jonathan Schmitz claimed that “gay panic” caused him to shoot and kill his friend Scott Amedure because Scott had revealed that he had crush on Jonathan on The Jenny Jones Show. Three days later, Schmitz went to the bank, withdrew money for a shotgun, bought the gun, and then drove to Scott’s trailer and shot him twice in the heart. Despite that evidence, the jury acquitted Schmitz of first-degree (premeditated) murder, and convicted him of the lesser, second-degree, murder.

In 2013, the American Bar Association, with the support of the LGBT Bar Association, unanimously approved a resolution calling for state legislatures to ban gay/trans panic defenses. The Williams Institute also provides model legislation for a ban. California was the first state to ban them in 2014. Illinios became the second state this in 2017, when the Republican governor signed the bill.

Legislative action is called for.

As the AP observed:

Supporters plan to revive legislative attempts to ban what’s also known as the ‘trans panic’ defense, in statehouses in Washington and New Jersey, where proposals haven’t yet received committee votes. Advocates also hope to make inroads in New York, Maryland, Michigan, Minnesota and Texas.

In 2018, it is essential that we commit to ending the murders of trans women of color, and do more to stop the hate crime epidemic. We have lost too many members of our community to anti-LGBT violence. One thing we in the legal community can do right now, is push for an end to harmful gay and trans panic legal defenses. This will help ensure that those who commit violent acts are unable to manipulate the anti-LGBT biases of the public to escape justice for their crimes.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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