Oregon about to become 14th state to ban fear of gay people as a murder defense

Oregon is set to ban a cruel legal strategy that uses victims’ own sexual orientation and gender against them to justify their killings in court. In doing so, it would join a number of other states that have prohibited this practice, widely known as the “panic defense.”

The legislation, S.B. 704, would block defendants accused of second degree murder from citing a victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation as part of an extreme emotional disturbance defense. In layman’s terms, it would prohibit defendants from arguing that a sudden awareness of the victim’s sexual orientation or gender identity in some way prompted the violence against the victim, provoking the defendant to act in self-defense.

The bill states that the ban includes situations in which “the victim made a romantic or sexual advance that was unwanted but did not involve force toward the defendant.”

The legislation is currently sitting on Democratic Gov. Kate Brown’s desk, awaiting her signature.

As of May 10, 13 states and the District of Columbia have enacted similar laws, according to the Movement Advancement Project, which tracks these kinds of bans. If Brown signs the bill, it would make Oregon the third state this year to prohibit the “panic defense” legal strategy, following Virginia and Vermont.

Virginia Del. Danica Roem (D), the first to openly transgender person to be elected and occupy a state legislative office, introduced her state’s version of the LGBTQ panic defense ban earlier in 2021. She said a teenage LGBTQ constituent of hers advocated for the bill, tweeting in March, “That student was living with the same fear that I did as a 14-year-old closet case when Matthew Shepard was murdered in ’98.”

And in Vermont, Gov. Phil Scott (R) commented after signing his state’s law prohibiting the defense, “With this legislation, Republicans, Democrats and progressives alike sent a message to Vermonters that your identity should never be an excuse for someone to cause you harm.”

The Maryland legislature also passed a bill recently banning the “panic defense,” but Gov. Larry Hogan (R) has not yet signed it, and has until May 29 to review the legislation.

The Williams Institute, a public policy research institute out of the University of California at Los Angeles, has said that the so-called “panic defense” is rooted in “antiquated ideas that being LGBTQ is a mental illness, and rely on the assumption that it is reasonable for a perpetrator to react violently to discovering the victim’s sexual orientation or gender identity, or to a romantic advance by an LGBTQ victim.”

According to the group, the legal strategy has shown up in a number of publicly reported court opinions in half of all U.S. states since the 1960s.

Violence against LGBTQ people, meanwhile, has continued. A November FBI report found that, in 2019, 16.8% of bias-motivated crimes targeted people based on sexual orientation and 2.8% were based on anti-trans bias.

At least 25 transgender or gender non-conforming people have been killed so far this year according to the Human Rights Campaign, which has advocated for passage of state “panic defense” bans as one of many legislative approaches to addressing the root causes of anti-LGBTQ violence. In a 2020 report, the organization noted that the majority of the victims in such cases were Black transgender women.

Brown, the first openly bisexual governor in the nation, has a record of supporting LGBTQ equality.

In 2019, she issued an executive order prohibiting state agencies from discriminating on the basis of sexual orientation and gender identity. She also signed a bill into law in 2017 that struck down state requirements forcing name changes and changes in gender markers on birth certificates to be posted publicly by the courts.

Brown and state lawmakers decided to shelve those requirements as a way of combating the discrimination and potential harassment and violence people face when they are publicly outed as transgender.

Oregon was also the third state to ban what is known as “conversion therapy” for minors — a dangerous practice that claims to change a person’s gender or sexual orientation — in 2015.

Published with permission of The American Independent Foundation.