A D.C. councilmember has introduced a bill that would prevent criminal defendants accused of murder or assault from using a “gay panic” defense.
Such defenses often highlight the victim’s sexual orientation or gender identity, particularly in jury trials, to explain why the defendant reacted in a way.
To bar the defense from being used, Councilmember David Grosso (I-At-Large) has introduced The Secure a Fair & Equitable Trial Act of 2017, or SAFE Trial Act. The bill would curtail the uses of such panic defenses for violent crimes that attempt to use the victim’s identity as justification.
Examples of gay panic defense include in the murder of Matthew Shepard; in the rape and murder of transgender man Brandon Teena; and in the 2013 murder of Clarksdale, Miss. mayoral candidate Marco McMillian, in which defendant Lawrence Reed claimed he acted in self-defense after McMillian made sexual advances on him.
Similar “trans panic” defenses were used by defendants to justify the 2002 murder of Gwen Araujo, of Newark, Calif., and the 2008 murder of Angie Zapata, in Greeley, Colo. In both of those cases, the defense referred to both victims by their birth names and used male pronouns to describe them in an effort to appeal to the bias of jurors in both trials.
While in practice Grosso’s bill primarily applies to situations where the victim is LGBTQ, the bill would also cover people who were targeted because of their race, ethnic or national origin, or membership among other classes of people protected by D.C.’s Human Rights Act.
The bill also requires that jurors in criminal proceedings be instructed not to let bias influence their deliberations if the prosecutor or defendant makes such a request. A similar measure was approved in California and signed into law by Gov. Jerry Brown (D) in 2014.
When introducing the bill on the Council dais, Grosso cited the 2008 murder of Tony Hunter, who was attacked in D.C.’s Shaw neighborhood while heading to a gay bar, and the 2003 murder of transgender woman Bella Evangelista, killed in the city’s 16th Street Heights neighborhood at the hands of a man who had paid her for oral sex, as examples where defendants attempted to utilize the “gay panic” or “trans panic” defenses.
“Anyone who knows me knows that I argue passionately for the human rights of criminal defendants, a fair and swift trial, and for alternatives to incarceration,” Grosso said. “All of that is possible without resorting to a defense that is premised on bias against lesbian, gay, bisexual or transgender individuals. A defense that exploits bias simply should not be acceptable.”
The American Bar Association has voted to support legislation with model language similar to that contained in the SAFE Trial Act.
In an interview with Metro Weekly, Grosso said that even though most D.C. juries have rejected attempts to utilize gay panic defenses as justification for their actions, it’s still important to prohibit the practice.
“Frankly speaking, I’m a little worried about the new administration coming in, and the elevated ‘freedom’ that people feel to talk in ways that are inappropriate, or to say things you probably shouldn’t be saying about people, and what that’s going to cause in the District,” says Grosso. “So I felt this was a good time to introduce this and make sure we prohibit the use of gay or trans panic defenses in the District of Columbia.”
Grosso believes his bill will receive support from his Council colleagues and eventually from Mayor Muriel Bowser. Already, four other councilmembers — Robert White (D-At-Large), Brianne Nadeau (D-Ward 1), Jack Evans (D-Ward 2) and Mary Cheh (D-Ward 3) — have signed on as cosponsors.
“In the past, I think we would have had trouble with this, given the fact that so many lawyers did have issue with not having the defense,” Grosso says. “But we’ve done our homework this time, and we’re aware that the lawyers support this. We’ve talked to the Public Defenders Service, and the Assistant District Attorney as well, so I think we’re in a better position.”
As for whether Congress will try and block the legislation, Grosso says he just can’t tell how national lawmakers will react.
“Thinking of the New World Order in this country, they could easily try and prevent us from moving forward with this,” he says. “I don’t think they would, but it’s just as predictable as the weather around here, if you ask me.”
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