It’s called the gay panic defense: Someone reacts with force or violence when he or she realizes that another person is of a certain sexual orientation or gender identity.
Delaware legislators are moving to eliminate that as a defense in Delaware courts.
The House Judiciary Committee approved House Bill 142, sponsored by Rep. Eric Morrison, D-Glasgow, to eliminate the move called an LGBTQ panic defense. It passed with 5 in favor and one against. It wasn’t clear who voted no.
HB 142 also would move the definition of sexual orientation and gender identity from the hate crimes section of the Delaware code to the general criminal code.
Morrison said the defense more recently has been used for transgender victims, whereas in the past it was used more for gay victims.
“The defense is a legal strategy asking a jury to find that a victim’s sexual orientation, gender identity or gender expression, is to blame for a defendant’s violent reaction up to, and including murder,” Morrison said..
Mark Purpura, president of the Equality Delaware Foundation Board of Directors, said the gay panic defense isn’t used on its own.
“It’s important to understand it’s not a stand-alone defense,” Purpura said. “It’s used in conjunction with other defenses like self defense, provocation, and diminished capacity…the victim’s sexual orientation or gender identity is raised as a way to buttress those other defenses.”
Purpura said that he is not aware of the defense being used in Delaware.
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Morrison cited several examples of the defense being used in some form, including the cases of Matthew Shepard, Scott Amedure and Daniel Spencer.
Shepard was killed in 1998 by Aaron McKinney and Russell Henderson, and during the trial, McKinney’s lawyer cited gay panic as a reason for killing Shepard. The judge rejected the defense because temporary insanity or diminished capacity defenses were banned in Wyoming.
Both McKinney and Henderson are serving life sentences, with McKinney guilty of felony murder, aggravated robbery and kidnapping while Henderson was guilty of murder and kidnapping.
Amedure was killed in 1995 by Jonathan Schmitz and during the trial, lawyers for Schmitz argued that part of the reason Schmitz killed Amedure was because Amedure had confessed to be Schmitz’s secret admirer on a talk show three days before the murder.
Schmitz was sentenced to 25 to 50 years in prison for second degree murder, and was released in 2017 on parole.
Spencer was killed in 2015 by James Miller after Miller claimed he was acting in self-defense because Spencer was making a sexual pass at him.
Miller received six months in prison and 10 years probation for criminally negligent homicide.
California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia have all passed similar legislation.
Rep. Jeffrey Spiegelman, R-Townsend/Hartly, asked why they are singling out one group instead of having the defense apply to all protected classes.
Purpura said in response that it’s because people in the LGBTQ community are the ones impacted by the defense.
“From a policy perspective, I would be more than happy to include other protected classes in a bill that expands on this bill,” Purpura said. “I just don’t want to delay enactment of this bill in that process. But… Equality Delaware would support other protected classes being included in a similar bill.”
Morrison said he hasn’t heard of the same type of defense being used for race or religion, but would support additional legislation adding other protected classes.
“In all the research I’ve done…I have never heard of there being a panic defense regarding someone’s race or religion or anything like that,” Morrison said. “I will also say that if you would like to draft legislation like what you’re speaking about, I’d love to have a conversation with you and probably support that legislation.”
During public comments on the bill, three people spoke in favor of the bill and one person seemed to speak both for and against it.
Leslie Ledogar, board vice president of the CAMP Rehoboth Community Center, said using the panic defense implies LGBTQ lives are worth less than others.
“When a perpetrator uses an LGBTQ plus panic defense,” Ledogar said. “They are claiming that a victim’s sexual orientation or gender identity not only explains, but excuses a loss of self control and the subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ victims, this defense implies that LGBTQ lives are worth less than others.”
Will McVay, the legislative policy analyst for Non-Partisan Delaware, said the bill is an empty gesture, and asked lawmakers to both support and oppose the bill.
“Don’t support this one. At best, this is another empty gesture that’s been narrowly averted,” McVay said. “At worst, an evil… deranged use of our compassion for the mentally ill will be used to avoid justice with perversions of right and wrong that deny the work of the law written on their hearts. Don’t hurt people, don’t take their stuff. Support HB 142.”
A fiscal note is not required for the bill, which has 22 additional sponsors and cosponsors, all of whom are Democrats except for Rep. Mike Smith, R-Pike Creek.
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