Last week, New Hampshire Republican Gov. Chris Sununu signed a bill into law that prohibits criminal defendants from using a victim’s actual or perceived sexual orientation, gender identity, or gender expression from being used as justification for violence committed against that victim.
The bill was approved by both chambers of the New Hampshire General Court back in June, with about half of House Republicans and two-thirds of Senate Republicans backing the bill, along with near-universal support from Democrats.
So-called “panic” defenses are a legal defense strategy, similar to provocation or diminished capacity, that may be employed by a defendant. Under the theory, the mere disclosure of a victim’s sexual orientation or gender identity led a defendant to become so uncomfortable or to fear for their bodily safety that they were prompted to commit violence or murder that person — allowing the person to be acquitted of more serious charges or obtain more lenient sentences.
While its application is not uniform across the country, the “panic” defense has been used, historically, in many high-profile cases involving murders of LGBTQ people, including Matthew Shepard, Brandon Teena, Marco McMillan, Gwen Araujo, Angie Zapata, and Islan Nettles. Such defenses have been outlawed in 15 other states and the District of Columbia. Until Sununu signed the bill into law, New Hampshire was one of only four states in the Northeast that did not ban “panic” defenses at trial.
When the bill was debated in the legislature, some Republican lawmakers argued that the bill could have unforeseen consequences.
State Rep. Bob Lynn (R-Windham), a former state Supreme Court justice, said he was concerned that the bill might unintentionally eliminate the use of “provocation” — a series of events that could lead a reasonable person to lose control — as a defense in situations where the accused and the decedent had a prior romantic or sexual relationship, the news outlet InDepthNH reported at the time.
“It would change 500 years of law, and I don’t think that that’s what anybody intended,” he said. “But that would be what the result of this would be.”
Cornerstone Action, a conservative think tank, opposed the bill by utilizing the argument that the bill would whittle away the ability of people to respond to unwanted sexual advances.
“[T]he bill was amended to…contain language which protects and facilitates aggressive ‘sexual advances,'” the organization wrote in a blog post asking supporters to demand the bill be defeated. “As a consequence those who would be most hurt if HB 315 passed in its present form would not be heterosexual men who killed homosexual men, as those pushing the bill would have you believe, but women who defended themselves from the predatory behavior of straight men. It is evident that the impetus behind the bill is to erode the safety and dignity of women, and to promote sexual harassment.”
But State Rep. Alissandra Murray (D-Manchester) pushed back against Cornerstone’s assertions as inaccurate, saying that a defendant can always claim self-defense if they were protecting themselves from an assault.
“The bill does specify non-forcible,” she said of the “sexual advances” provision.
“Cornerstone’s telling people that this would negate people’s ability to pursue assault charges, that is not the case at all,” Murray added.
Others argued that the bill was unnecessary because New Hampshire defendants have not typically used the gay or LGBTQ “panic” defense in courts. Still, supporters argued that just because it’s not common doesn’t mean the defense — which relies heavily on stereotypes and tropes casting LGBTQ people as predators — shouldn’t be outlawed.
“There have been a number of important moments this session worth highlighting, where the Legislature took action that directly impacts the lives of our LGBTQ+ friends, family members, neighbors, community members, and fellow colleagues in both the House and Senate,” State Sen. Rebecca Perkins Kwoka (D-Portsmouth) said back in June.
“The passage of HB 315 sends an imperative message to Granite Staters that New Hampshire remains a welcoming state and we will take steps to protect all of our citizenry, including our marginalized groups,” she added.
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