Gay + Trans “Panic” Defense Ban Heads to New Jersey Governor

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On Friday, December 16th, the New Jersey Senate overwhelmingly approved legislation to ban the gay and trans “panic” defense, sending the bill to Governor Phil Murphy’s desk. The move sets New Jersey on the path to become the sixth state to prohibit the practice this year and the ninth in the nation. With one abstention, the entire Senate approved the bill.

“Make no mistake, the ‘panic’ defense is flat-out discriminatory legal malpractice, and no one should ever be excused from murder because their victim is gay or transgender,” said Christian Fuscarino, executive director for Garden State Equality. “As hate crimes against LGBTQ New Jerseyans continue to rise and trans people are murdered in the streets, it’s more imperative than ever that we ensure our criminal justice system protects LGBTQ people equally — full stop. When this ban becomes law, New Jersey will send an unequivocal message that we fully value the lives and dignity of LGBTQ people.”

The “panic” defense legislation previously passed in the Assembly with a unanimous vote on November 25.

Garden State Equality had initially outlined a ban on the “panic” defense as one of its 2020 legislative priorities, but thanks to organized efforts from its membership and the leadership of elected allies, the bill was able to swiftly move through the legislature ahead of schedule. Next legislative session, Garden State Equality will be advocating to reform New Jersey’s HIV criminalization laws, secure funding for LGBTQ youth homelessness, pass a bill of rights for LGBTQ older adults, implement policy recommendations from the NJ Transgender Equality Task Force, among other items. Additionally, as part of its federal agenda, Garden State Equality will be advocating for a nationwide ban on the “panic” defense.

The gay and trans “panic” defense is a legal strategy which asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder. When the defense is employed, the perpetrator claims that their victim’s sexual orientation or gender identity not only explain — but excuse — their loss of self-control and subsequent assault. The legislation would prevent a murder charge in such a case from being reduced or acquitted.

Photo by Sharon McCutcheon from Pexels

Gay and trans “panic” defenses have been used to acquit dozens of murderers of their crimes. Even in instances where juries are instructed not to listen to gay and trans “panic” defenses, the implicit homophobic or transphobic bias of hearing the defense at all can still influence the jury’s decision.

In 2019, at least 30 transgender Americans have been reported killed. The FBI reports that hate crimes in New Jersey have increased for the third consecutive year, with LGBTQ people making up a disproportionate amount of victims. Last month, Governor Phil Murphy and Attorney General Gurbir S. Grewal announced policy changes for law enforcement to protect LGBTQ New Jerseyans following the Transgender Equality Task Force’s final report and recommendations.

In 2019, five states have outlawed the “panic” defense, including Maine, New York, Hawaii, Nevada, and Connecticut. Three other states have previously outlawed the discriminatory legal strategy: California (2014), Illinois (2017), and Rhode Island (2018).

Former Assemblymen Tim Eustace and Reed Gusciora initially introduced and sponsored legislation in 2014-2015 to ban the “panic” defense. Current legislation, A1796 / S2609, is sponsored in the Senate by Joseph Lagana, Vin Gopal, Troy Singleton, and Loretta Weinberg.

Reaching out to Jon Oliveira, Director of Communications at Garden State Equality, we asked, “When is the governor expected to sign it into law?”

He responded, “We’re in conversations.  The Governor is expected to sign in January. Given that the bill passed in both chambers without a single no vote, we expect it to become law.”

What do you think?