Colorado is 11th state to ban 'panic defense' in crimes against LGBTQ people

Colorado on Monday became the 11th state to ban the so-called gay and trans panic defense, a legal tactic used by people accused of committing crimes against LGBTQ people to shift the blame onto the victims themselves.

Colorado Senate bill 20-221 was signed into law by Democratic Gov. Jared Polis.

The “panic defense,” which a report issued by the Williams Institute at the UCLA Law School in 2016 says has been used since the 1960s, posits that “the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity” can be sufficient provocation for a defendant to have attacked the victim; can cause a temporary mental breakdown, or diminished capacity, also leading to an attack; and can lead to the attacker feeling that they themself are in danger and acting in self-defense.

Amanda Gall, a sexual assault resource prosecutor with the Colorado District Attorneys’ Council, told KOAA News5 of the ban, “When somebody is targeted because of their sexual orientation or gender, we want to make sure that that victim has a fair day in court, and this bill is going to help us ensure that there aren’t biased arguments or bigoted arguments in our courtrooms here in Colorado.”

Gall added that there have been cases where this defense has been successful.

Colorado’s new law was enacted amid escalating violence against the trans community nationwide. This year so far at least 21 transgender or gender-nonconforming people have been fatally shot or otherwise killed by violent means, according to the Human Rights Campaign. Many of the victims are Black trans women. Thirteen of the victims were killed in states without bans on the use of panic defenses, including in Florida, Texas, Arkansas, and Missouri.

In all of 2019, at least 27 transgender or gender-nonconforming people’s lives were extinguished, and not all of their cases have been solved. Four victims were killed in Puerto Rico, which does not have a ban on panic defenses in place, according to the Movement Advancement Project.

Panic defenses have been used previously by defendants in cases involving violence against Black trans women. Islan Nettles, a young Black trans woman, was killed in 2013 by James Dixon, a man who beat her when, after he had flirted with her, a friend told him she was transgender. Nettles was comatose when she was taken to a hospital, and after several days she was taken off life support. Dixon said he had been provoked. In a taped confession, he said, “I just didn’t want to be fooled” and felt his “manhood” had been threatened. Although Dixon could have been sentenced to 25 years in prison, he was only sentenced to 12 years.

Experts say the rise in attacks on others in the LGBTQ community prove the need to address so-called panic laws now.

In June, a white gay man, Holden White, was stabbed in Louisiana, and the FBI is now investigating the case. The police department is not investigating whether it was a hate crime, but it has arrested a suspect. A gay Black man, McKinsley LaKeith Lincoln, was found dead from a gunshot wound in the state in May. At the time, police said, “All aspects of any criminality are being considered to include the possibility of hate crime involvement.”

Attorneys have not yet said whether they will use the “panic” defense in those cases, but Cathy Renna, interim communications director for the advocacy group National LGBTQ Task Force, said LGBTQ advocates need to create awareness around the issue anyway.

“We have seen increasingly as we pay more attention to this epidemic against trans women, particularly trans women of color, we’re seeing that being brought out as a blame-the-victim mentality, and it’s of great concern because there are far too many places where the panic defense is still considered a credible defense,” Renna said. “We’re seeing more and more cases coming into the courts, where that’s allowed.”

She added, “That defense can play on the homophobia and transphobia of juries and judges and the public. They can claim LGBTQ people are being deceptive or lying about who they are.”

According to the FBI database, hate crimes against LGBTQ people have risen over the past few years, although that may be an undercount.

Legislation banning the panic defense was first enacted in California in 2014. The defense has also been banned in Illinois (2017); Rhode Island (2018); Maine, Nevada, Hawaii, New York, and Connecticut (2019); and earlier this year in New Jersey and Washington state.

Published with permission of The American Independent Foundation.