UPDATE: According to a June 9 media release, the ‘gay-panic” defense bill has been reintroduced as Senate Bill 20-221.
A basic principle of conservatism and libertarianism is that people normally are responsible for their actions. Sure, there are some exceptions. If you grow a brain tumor that profoundly changes your behavior, that might put you at least partly beyond moral blame for your actions. If someone kidnaps your child to force you to do something horrible, the kidnapper deserves much or all of the blame. But claiming to be panicked or fearful around someone certainly is no valid excuse for hurting the person.
So a “panicked” racist could not reasonably plead for leniency for hurting or killing a black person. And someone who dislikes gay or transgendered people could not justifiably claim that panic excuses harming the person.
That brings us to Colorado House Bill 20-1307, which sought to explicitly limit the so-called “gay-panic” or “trans-panic” defense in criminal trials. A typical case might involve a man harming a gay or transgender person and then saying a sexual advance caused the violence. Obviously such an excuse is outrageous.
I was surprised to read that the Senate judiciary committee voted to kill the bill on May 26. I figured the bill would fly through our Democrat-controlled government. Remarkably, the committee’s three Democrats voted to kill the bill (postpone it indefinitely), whereas the two Republicans voted to keep it alive. Had Republicans controlled the Senate and killed the bill, headlines would have blared their betrayal of the gay-rights cause.
Senator Pete Lee, who voted to table the bill, explained: “My vote doesn’t reflect the merits of the bill itself, but reflects instead the time in which it was heard. Due to COVID-19’s effects, we have limited time and even more limited resources this session to implement change. We decided to focus our efforts on issues that cannot wait for next session to be addressed, such as COVID-19 relief or the state budget. Since the gay panic defense is used exceptionally rarely, and used successfully even more rarely, we made the difficult choice to focus on the most pressing issues this session. I expect the bill to be reintroduced next year, and I fully intend to vote for it then.”
Representative Brianna Titone, Colorado’s first transgender legislator, defended the bill in a June 1 letter: “Now is not the time to ignore legislation that will protect innocent Coloradans against violent hate crimes. . . . Right now, a loophole in our law allows the opportunity to justify hateful violence, potentially encouraging perpetrators to perform heinous acts in the name of ‘fear.'” She said she’d seek to revive the bill.
Senator Lee is right that the “gay panic” defense is hardly ever used. Indeed, for Colorado, I found few examples of it being tried and no examples of it succeeding. There may have been a recent successful use of the defense in Texas, but that’s not clear to me, as the defense attorney said his client exercised self-defense. Maybe the jury went easy on the defendant because they thought the victim was gay and made a romantic gesture, but from what I can tell the defense did not formally use a “gay panic” claim. The Matthew Shepard case was tried in Wyoming, where the judge barred the gay-panic defense. The Colorado Sun reviews a Colorado case in which “the judge overseeing the case would not allow” such a defense. Regarding the horrific 2008 Colorado murder of Angie Zapata, Colorado Politics notes, the defense tried but failed to use a gay-panic defense. But prosecutor Amanda Gall told the Sun that some successful uses of the defense might be hidden by court seal.
The bill sought to make several changes to the statutes. It adds, “Evidence of knowledge or awareness of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation shall not constitute inability to distinguish right from wrong.” And: “A person is not justified in using physical force if . . . the victim made an unwanted nonforcible romantic or sexual advance toward the defendant.” And, regarding murder and assault charges: “A defendant’s act does not constitute an act performed upon a sudden heat of passion if it results solely from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity,” etc., including in cases of unwanted sexual advances. The bill also changes details about various rules of evidence and hearings.
I’m not sure the changes to the language about legal insanity are needed, as existing language is already strong. The relevant statute (16-8-101.5) says that, despite “moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil . . . the person is accountable to the law.” That already precludes invocation of “gay panic” and the like.
In other ways the bill doesn’t go far enough. For example, consider the language for second-degree murder, which normally is a class 2 felony (18-3-103). The crime is bumped down to a “class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person.”
That language suffers two main problems. First, by definition, a reasonable person is not overwhelmed by “irresistible passion.” So the existing statutes are in that respect absurd on their face. Second, what counts as a “provoking act” is entirely subjective. Some Muslims regard the drawing of Mohammed to be provoking. Some socialists regard capitalist acts among consenting adults to be provoking. Some conservatives find the burning of the American flag to be provoking. The law should objectively define rights-violating behavior, not excuse some violent acts because of someone’s emotional incontinence. Nor should the law favor some “passionate” criminals or some “panic” defenses over others.
I realize legislators are busy. But establishing just and equal treatment under the law is, after all, the legislature’s primary responsibility. Surely it has the time to weigh the merits and details of the bill at hand.