In a little-noticed development, five members of the D.C. City Council in February 2017 co-introduced a bill to ban the use of the so-called gay and transgender “panic” defense in criminal trials.
It’s called the Secure A Fair & Equitable Trial Act of 2017, or B22-0102.
Supporters of the bill, including the LGBT Bar Association, say the legislation is needed to put a stop to a practice in which defense attorneys ask a jury to find that a victim’s sexual orientation or gender identity is to blame for a perpetrator’s violent action against an LGBT person, including murder.
California, Illinois and Rhode Island have adopted laws to ban such a defense and similar laws are pending in other states as well as in D.C. Last month, U.S. Sen. Ed Markey (D-Mass.) and U.S. Rep. Joe Kennedy III (D-Mass.) introduced a bill in Congress that would ban the use of the LGBT panic defense in federal courts.
The D.C. bill has been stalled in the Council’s Committee on the Judiciary and Public Safety since its February 2017 introduction.
Erik Salmi, a spokesperson for the committee’s chairman, Council member Charles Allen (D-Ward 6), said there is no hearing currently scheduled for the bill. Hearings are considered the first step in the process of moving a bill forward for a vote by the full Council.
“[T]his fall is going to be packed as we work through a lot of legislation on a wide range of public safety topics,” Salmi said in an email describing the committee’s workload. “If anything changes, I’ll be sure to reach out to you with an update,” he said.
The Council members who introduced the bill were David Grosso (I-At-Large), the bill’s author; Robert White (D-At-Large), Brianne Nadeau (D-Ward 1), Jack Evans (D-Ward 2), and Mary Cheh (D-Ward 3). Council member and former D.C. Mayor Vincent Gray (D-Ward 7) signed on as a co-sponsor of the bill.
The D.C. bill is different from the bills approved by the three states and the congressional bill in that it expands the categories of crime victims for which the panic defense cannot be used by a defendant in a trial beyond just LGBT people.
“For any crime of violence, sufficient or adequate provocation for a defense premised on ‘heat of passion’ shall not exist if the defendant’s actions are related to the discovery of, knowledge about, or potential disclosure of one or more of the following characteristics or perceived characteristics of the victim,” the D.C. bill states.
The bill lists those categories as, “disability, gender identity or expression, national origin, race, color, religion, sex, or sexual orientation, regardless of whether the characteristic belongs to the victim or the defendant, even if the defendant and victim dated or participated in sexual relations, or if the defendant or victim romantically pursued the other…”
Representatives of local LGBT organizations have yet to take a position on the D.C. bill, in part, because the Council members who introduced it took little or no action to publicize it and the LGBT groups were unaware of the bill, according to activists contacted by the Washington Blade.
Meanwhile, the national ACLU and the National Association of Criminal Defense Lawyers decided not to take a position on the pending congressional bill to ban the LGBT panic defense, spokespersons for the two organizations said this week. A spokesperson for the ACLU’s D.C. area chapter said the chapter has yet to take a position on the D.C. bill.
Sources familiar with the two groups, who spoke on condition of not being identified, said the ACLU and NACDL most likely were troubled over a possible ban on the ability to use a criminal defense on grounds of “mitigating” circumstances such as a defendant’s surprise to discover a female sex partner has male genitals.
The sources speculated that the two groups may not have come out officially against legislation to ban the panic defense in deference to their support for the LGBT community.
Salmi, Council member Allen’s spokesperson, didn’t say in his email whether Allen has reservations about the bill or whether the delay in scheduling a hearing on the bill is due solely to a committee backlog of other pending bills.
In a statement on its website, the LGBT Bar Association noted that the American Bar Association, the nation’s preeminent organization of lawyers, strongly endorsed legislation to ban the gay and transgender panic defense in a resolution approved by its members in 2013.
“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 LGBT Bar Association says in a statement on its website. “By fully or partially acquitting the perpetrators of crimes against LGBT victims, these defenses imply that LGBT lives are worth less than others,” the statement says.
The statement adds that “gay and trans ‘panic’ defenses frequently draw on unique stigmas about LGBT people, sexuality, and gender to justify horrific violence against gay and trans individuals.”