LGBT Panic Defense Prohibition Act

Summary: People who assault LGBT people often suggest that surprise realization of the victim’s LGBT status was to blame for the defendant’s “panicked” violent reaction. The LGBT Panic Defense Prohibition Act prevents that legal tactic during a criminal trial.

Legislation based on Vermont HB 128 (2021)

Findings based on The National LGBT Bar Association

Such legislation has so far been enacted in 13 states: CA, CO, CT, HI, IL, ME, NV, NJ, NY, RI, VA, VT and WA

SECTION 1. SHORT TITLE

This Act shall be called the “LGBT Panic Defense Prohibition Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature/council finds that:

  1. The LGBTQ+ “panic” defense is a legal tactic that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder. It is not a free-standing defense to criminal liability, but rather a tactic used to bolster other defenses.
  2. When a perpetrator uses an LGBTQ+ “panic” defense, they are claiming that a victim’s sexual orientation or gender identity not only explains, but excuses, a loss of self-control and the subsequent assault.
  3. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others.
  4. One of the most recognized cases that employed the LGBTQ+ “panic” defense was that of Matthew Shepard. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men.
  5. Except where specifically prohibited by law, the defense is still being used today.

(B) PURPOSE—This law is enacted to protect the health, safety and civil rights of those who are, or perceived to be, LGBT people.

SECTION 3. DEFENSE BASED ON VICTIM’S IDENTITY PROHIBITED

After section XXX, the following new section XXX shall be inserted:

In a prosecution or sentencing for any criminal offense, the following shall not be used as a defense to the defendant’s criminal conduct, to establish a finding that the defendant suffered from diminished capacity, to justify the defendant’s use of force against another, or to otherwise mitigate the severity of the offense:

1) Evidence of the defendant’s discovery of, knowledge about, or the potential disclosure of the crime victim’s actual or perceived sexual orientation or gender identity, including under circumstances in which the victim made a nonforcible, noncriminal romantic or sexual advance toward the defendant; or

2) Evidence of the defendant’s perception or belief, even if inaccurate, of the gender, gender identity, or sexual orientation of a crime victim.

SECTION 4. EFFECTIVE DATE 

This law shall become effective on July 1, 202X.

 

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