Only the 11th state

Why was the gay/trans panic defense, recently banned by state law, ever even a thing?

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As protesters called for racial justice outside of the Capitol in early June, one chant stood out in particular to Rep. Breanna Titone (D-Arvada). “Black trans lives matter,” she heard over and over again. And it’s one she could not ignore. 

As the first trans person elected to public office in Colorado, and only one of four elected trans officials across the country, Titone knew she couldn’t give up on the Gay or Transgender Panic Defense bill, which died in committee after a whole host of bills were killed swiftly in light of the coronavirus shutdowns and COVID relief legislation that needed to be passed. It was a legislative priority for Democrats at the beginning of the year, and one that drew widespread support from both sides of the aisle. So, Titone wrote a letter to party leadership and started a Change.org petition to garner attention and support for the cause.

“I wanted this bill to go through because it aligned with what was going on outside the building,” Titone says. “If we’re going to start making meaningful change to support black lives, we need to work on supporting trans black lives. And this is part of that.” 

On June 13, Gov. Jared Polis signed SB-221, making Colorado only the 11th state in the U.S. to ban the use of gay or transgender panic defense in criminal court. The new law prohibits the knowledge or discovery of a victim’s gender identity or sexual orientation from justifying violence in criminal cases.  

Gay and transgender panic defense is a tactic that materializes in a variety of ways, used as part of self-defense, temporary insanity or diminished capacity, and heat of passion or provocation arguments in an attempt to rationalize a violent reaction. But it’s not a defense in and of itself. 

“It’s not a formal defense that you enter that has been codified by law,” says Scott Skinner-Thompson, a law professor who focuses on LGBTQ issues at the University of Colorado Boulder. “It comes in sort of at the edges and often it’s not a complete defense, but maybe it’s a mitigating factor that defendants try to get courts to consider when [trying to reduce] a sentence or conviction.”

It’s been used to excuse homophobic and transphobic violence across the country, essentially arguing that the discovery of a victim’s sexual or gender identity is a defensible reason to commit acts of violence or murder. A defendant may claim that a man came onto him, which provoked him to react, as was raised in the Matthew Shephard case by one of the killers. (It didn’t work.) Or, as in the 2008 death of Angie Zapata from Greeley, a defendant may claim that the discovery rendered them temporarily insane, unable to distinguish right from wrong. (Also, unsuccessful.)

“Gay panic is really just a type of defense that appeals to the bias or prejudice of jurors,” says Amanda Gall, who helped write the legislation as the sexual assault resource prosecutor for the Colorado District Attorneys’ Council policy team. “That’s really what [defense attorneys] are trying to do. [They’re] trying to say, ‘Care less about this victim, jurors, because they’re LGBTQ or because you’re afraid of them.’”

According to the American Bar Association, the defense was first used in the 1954 Florida killing of William T. Simpson, a gay man whose killers used the provocation defense, saying they shot Simpson to resist his advances. 

It was used again in a California case in 1967, according to Carsten Andresen, assistant professor of Criminal Justice at St. Edward’s University, in Austin. He told the Criminal podcast in December 2019, that in this case a man tried to use the defense to justify beating a teenager who was urinating in an alley, saying that the boy was making a pass at him. “It was unsuccessful when he used it,” Andresen told Criminal, “but people have been trying to use it ever since.”

Andresen first became interested in researching the use of the defense because of three different Austin murder cases that used it. The most recent of which involved the 2015 death of Daniel Spencer, who was killed by his neighbor who claimed Spencer tried to kiss him before he stabbed him to death in self-defense. The case drew national attention when attorneys used the panic defense to help reduce the killer’s charge and sentence — from manslaughter with a mandatory prison sentence of two to 20 years down to negligent homicide and six months jail time with 10 years of probation. 

“It’s rooted in antiquated and prejudicial notions about and fear of sexual and gender minorities that really don’t have a place in our society,” Skinner-Thompson says. 

The defense is of a time where society stereotyped gay and trans people as hyper-aggressive and predatory, mentally ill, or even as criminals given former sodomy laws.

“It’s all the ways the courts were articulating that: You could be fearful of a criminal, because they’re engaging in a criminal act. You could be fearful of somebody with personality disorder or mental illness, because they’re theoretically dangerous,” Gall says. “That’s the way the argument would play out in court.”  

But the American Medical Association debunked the idea that homosexuality and gender fluidity are mental illnesses in the 1970s, and sodomy laws were deemed unconstitutional nationwide in 2003. Yet gay/trans panic defenses are still being used. 

“There are few, if any, instances where a defendant can claim that the revelation of someone’s race, religion or identification provoked them to violence,” says Boulder County District Attorney Michael Dougherty, who also helped draft the new law. “Where here, before this law was passed, gay and trans panic defenses draw upon stigmas about LGBTQ people’s sexuality and gender just to justify horrific violent acts.”

“There’s no victory in getting a bill passed after someone else has lost their life.”

D’Arcy Kemnitz, executive director of the National LGBT Bar Association and Foundation

Widespread use of gay/trans panic defenses is difficult to track, largely due to the fact that there isn’t a national database of criminal trial court decisions, says D’Arcy Kemnitz, executive director of the National LGBT Bar Association and Foundation, which has been working on anti-gay and trans panic defense legislation since 2004. 

“Our practitioners who are on the front lines in criminal trial courts, see it used all the time, but there is no one database in any jurisdiction, not to mention nationally, where these are being counted,” she says. “So, we don’t have good data. We simply don’t have a criminal justice system that is good at keeping data of how bad the criminal justice system is.”

According to a 2016 study out of UCLA’s Williams Institute, the defense has appeared in court opinions in about half of states since the 1960s. 

Although ultimately unsuccessful, Zapata’s murder is the most famous example of the defense used in Colorado. Her killer, Andre Andrade, said discovering Zapata was transgender prompted him into a fit of rage resulting in him beating her to death with a fire extinguisher. The jury in that case not only didn’t buy the trans panic defense and found him guilty of first-degree murder, but it also found Andrade guilty of a hate crime, the first in the country involving a transgender victim. Andrade is now serving a life sentence at Sterling Correctional Facility. 

In other recent cases, however, the defense has been successful, Gall says. She knows of at least two different cases that ended in acquittals due to a gay panic defense. 

“And in Colorado, when you are acquitted, the case can be sealed,” she says. “So, we are not able to even acknowledge the existence of those cases.”

Still, Gall acknowledges that the defense has been rarely used in Colorado, but that doesn’t mean it wasn’t necessary to pass legislation to ban it.

“We want to see justice for victims, and that includes victims of biased-motivated crimes,” she says. “And we recognized that this defense was still on the books and legal within Colorado. And it just didn’t seem right.”

Colorado follows California, Connecticut, Hawaii, Illinois, Maine, Nevada, New Jersey, New York, Rhode Island and Washington in banning gay/trans panic defenses. 

The first state to address it was California in 2006. The law required juries be instructed not to allow personal bias against a victim to affect their decision, named after a transgender teenager, Gwen Araujo — who was killed by four East Bay men, at least one of whom claimed that Araujo provoked her own murder by throwing his own sexual identity into crisis. In 2014, the state outright banned gay and trans panic defenses following the 2008 death of California eighth-grader Larry King, who was killed by a classmate after asking him to be his valentine. The jury in that case, although tasked by the judge not to allow prejudice based on sexual identity to affect their decision, deadlocked and the judge declared a mistrial. Eventually the boy pleaded guilty and is now serving a 21-year jail sentence. (King’s story is also detailed on the Criminal podcast.) 

 Earlier this year, the state of Washington passed a law named after Nikki Kuhnhausen, a transgender teen who was killed in 2019. The man charged with her murder has pled not guilty and is awaiting trial. Whether or not his defense attorneys were planning on using a trans panic defense is unknown. Regardless, the new law now prohibits it. 

“There’s no victory in getting a bill passed after someone else has lost their life,” Kemnitz says. 

Kemnitz first heard about the use of the panic defense at a conference on the subject hosted by Fulton County (which includes Atlanta) District Attorney Paul Howard in 2005. It was inspired by the murder of one of Howard’s own assistant district attorneys, Ahmed Dabarran, whose killer was acquitted in 2003 because he claimed he was acting in self-defense, stuck in a sexual encounter with Dabarran. Howard told the Criminal podcast the evidence against the killer was so strong, there was no way he figured the panic defense would work. Until it did. Georgia still hasn’t passed legislation to ban such defenses.

A federal law banning the defense was first introduced in 2018, and again in 2019. It remains in committee in both the House and the Senate, although Kemnitz isn’t holding out hope it will pass or be signed into law under the current administration, given its record on rolling back transgender protections. 

“Should a change in the White House occur, we are certain we’ll see things moving on a federal level after the November presidential election,” Kemnitz says. “But until then, I think you can count on not a lot moving for any LGBT protection on a federal level.”

Colorado’s law, however, goes above and beyond any of the previous laws passed in other states, Gall says. It bans the use of it when it comes to self-defense, temporary insanity and heat of passion or provocation, but it also creates a protective hearing that requires attorneys to vet any sort of reference to sexual orientation or gender identity of either the defendant or the victim in front of the judge before that information can ever make it to a jury.

“We banned this defense, like whack-a-mole, sort of everywhere that we had ever seen it come up in any fashion,” Gall says.

Rebecca Kriesner Rep. Breanna Titone, Rep. Leslie Herod and Rep. Matt Soper celebrating the passage of SB-221, which prevents defendants from claiming that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder.

The bill was first introduced this year as House Bill 1307 by Rep. Leslie Herod, and it was initially met with opposition from the Criminal Defense Bar. 

“There’s a constitutional right for the accused to present a defense. And as a general matter, the Defense Bar opposes limiting of that constitutional right to present a defense,” says Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar (CCDB). “Our position is quite simply that that is an issue for the jury to decide whether the defense should prevail at trial or not, and that we should not be issuing blanket legislation without knowing individualized facts and circumstances of the case, and taking that out of the hands of a jury to decide at trial.”

After working with legislators and prosecutors, CCDB came to take a neutral position on the legislation.

“Particularly at this moment when we’re really taking a hard look at our criminal justice system and its pervasiveness, an argument can be raised to [question] why are we taking away defenses?” Skinner-Thompson says. “From a social justice standpoint, defenses seem like a good thing to keep people out of jail. But I think this particular defense is really problematic because it enshrines and legitimizes homophobia. And I think the answer to dealing with these larger embedded structural inequalities, including racism, is not to allow homophobic defense to continue, but to continue to reduce and limit the size of our carceral state.”

Limiting defenses was a point of contention for the CCDB, but so too was the fact that it would have prohibited the defendant from introducing any evidence of sexual orientation or gender, including that of the accused. 

“I can tell you as a very butch lesbian, who is often mistaken for a man, that there are fact patterns that hadn’t really been considered, particularly where it hadn’t been thought of that the defendant might be a member of the LGBTQ community,” Gorman says. “And if I were a defendant in a case like that, to not be able to educate the jury about either my sexual orientation or gender identity or expression could be problematic, especially if I’m facing a very straight, very cisgender jury who doesn’t have the information they need to understand the way things played out.”

When testifying before the state legislature in support of the bill, Dougherty cited a 1994  Colorado Court of Appeals case, where the defendant appealed his conviction of first-degree murder, his lawyer arguing that rumors that the victim was bisexual makes it “probative and relevant that he may have attempted a homosexual rape of my client.” 

“The very idea that there’s a rumor that the victim is bisexual should be heard by the jury highlights why we need this law in Colorado,” Dougherty says. “And other states should follow our lead.” 

What’s more, the Appeals Court only ruled against the defendant because his attorneys weren’t able to prove whether the rumors were true. 

“In other words, the victim’s sexual orientation would likely have been admissible if it had been confirmed,” Doughterty says. “Under Senate Bill 221, this defense would be precluded even if the defense demonstrated that the victim was LGBTQ.”

When the bill was tabled by Democratic party leadership in late May, lawmakers on both sides of the aisle came to its defense. And on June 8, Titone reintroduced it, co-sponsored by Rep. Matt Soper (R-Delta), as well as senators Jack Tate (R-Centennial) and Dominick Moreno (D-Commerce City). It passed nearly unanimously, with a single vote against it. 

“When we have bipartisan support, it really shows that we’re doing things to change the law that is just for the good of everyone,” Titone says.

“It was not a hard sell,” Gall adds. “Because nobody believes folks should have their character assassinated in court, the courts are for facts and law, they’re not for bias and prejudice.”

While this is an important step, Skinner-Thompson says, the law is largely symbolic and shouldn’t distract us from other issues impacting the LGBTQ community. As a society we still have a long way to go to stop homophobia and transphobia, he says. 

“A disproportionate number of black trans women are subject to crimes. And too frequently those crimes don’t go investigated,” Skinner-Thompson says. He also cites other forms of violence against the queer community including disproportionate rates of homelessness and unemployment, as well as over-policing of the trans community by the state. 

The day Boulder Weekly spoke with Skinner-Thompson, news broke of the Trump administration’s proposed reversal of an Obama-era rule that required federally funded homeless shelters to house individuals according to their gender identity, for example. The leaked memo from the Department of Housing and Urban Development included instructions on how to spot transgender women, such as looking for an Adam’s apple.

And in May, Jayne Thompson, a 33-year-old white transgender woman, was shot to death after police were called due to her exhibiting “odd behavior” in Mesa County on the Western Slope. Charges won’t be filed against the officer who shot Thompson, who was misgendered in media and law enforcement reports, according to Human Rights Campaign (HRC). Tony McCade, a black transgender man, was killed by police in Florida the same month.  

“So this gets back to my point about symbolism rather than material change,“ Skinner-Thompson says. “I do think this change (banning the gay/trans panic defense) is important, but it’s really just the tip of the iceberg in terms of actually materially changing the lives for many of the most marginalized in the LGBTQ community.”