This summer, New York became the sixth state to ban the so-called gay and trans “panic” defense, which asks a jury to find that a victim’s sexual orientation or gender identity is to blame for a defendant’s violent reaction, including even murder. Here is an informative MAP showing where different states stand on this issue. Here is an article about some possible constitutional problems with the new statute.
Some interesting facts I learned from the article:
- The first use of the gay panic defense in a legal setting was almost 60 years ago in California. The defendant, who was accused of murder, presented evidence that he killed the victim after he made unwanted homosexual sexual advances towards him. Two doctors testified for the defendant that the he killed the victim in a homosexual panic. It didn’t work.
- The National Association of Criminal Defense Attorneys has already issued a statement in which it opposed, in general, any legislative prohibition of specific defenses that would permit a defendant to mitigate or justify his conduct. NACDL statement, Feb. 16, 2019.
- The Supreme Court has explicitly ruled that the right to present a defense is not absolute and legislatures are free to eliminate or narrow criminal defenses. Montana v. Egelhoff, 518 U.S. 37 (1996).