The D.C. Council on Tuesday, Dec. 15, voted unanimously to give final approval of a bill that bans the use of the so-called gay and transgender panic defense in criminal trials.
A coalition of local LGBTQ advocacy groups that lobbied for the legislation said it is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or gender expression is to blame for a defendant’s criminal act, including murder.
The attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
At least eight states, including New York and California, have passed similar legislation banning the gay and trans panic defense.
The bill approved by the Council, the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, also revises the city’s hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats.
LGBTQ supportive prosecutors and legal observers have said the wording in D.C.’s existing hate crimes law – similar to hate crimes laws in other cities and states – has confused juries by appearing to require that prosecutors prove that hatred was the only motive behind a crime rather than one of several other possible motives.
The “sole” motive factor, which some judges have interpreted D.C.’s hate crimes law to require, has resulted in juries finding defendants not guilty of a hate crime, even when evidence of a hate crime was considered strong and convincing, according to legal observers.
The bill approved by the D.C. Council this week adds a provision to the existing law that states, “A designated act need not solely be based on or because of an accused’s prejudice.”
The Maryland Legislature earlier this year approved a bill making a similar change to Maryland’s hate crimes statute. And a bill is pending in Congress calling for making a similar change to the federal hate crimes law.
The Evangelista-Hunter bill passed by the D.C. Council on Tuesday makes a separate change to the city’s existing hate crimes law by authorizing the D.C. Attorney General to bring a civil lawsuit seeking damages against organizations, corporations, and individuals who commit a hate crime against a D.C. resident. Among other remedies the new provision provides civil damages for victims of up to $10,000 per hate crimes act.
In addition, the legislation expands the types of properties in the city where it is illegal to display a symbol of hate or to deface a property based on religious or secular uses.
D.C. Council member Charles Allen (D-Ward 6), chair of the Council’s Committee on the Judiciary and Public Safety, which shepherded the bill through a public hearing and its final draft, said the provision related to properties was especially relevant following last weekend’s violent acts by white nationalist protesters, who destroyed property at several D.C. African-American churches.
Allen said D.C. Council Chair Phil Mendelson (D-At-Large), Council member David Grosso (I-At-Large), D.C. Attorney General Karl Racine, and D.C. Mayor Muriel Bowser played a role in helping to develop the legislation.
The legislation is named after Bella Evangelista, a transgender woman who was shot to death on a D.C. street in 2003 by a 23-year-old man; and after Tony Randolph Hunter, a gay man who died from a head injury sustained from a fall after witnesses said he was attacked and assaulted by a 20-year-old man while walking to a gay bar in 2008. The men charged in the two cases attempted to use the panic defense after their arrests.
The bill will now go to Mayor Bowser, who has said she will sign the measure, sending it to Capitol Hill for the required 30 legislative day review by Congress.
The D.C. Advisory Neighborhood Commission’s Rainbow Caucus, which includes LGBTQ elected ANC members from across the city, issued a statement on Tuesday saying it is “both pleased and gratified” that the Council voted unanimously to ban the gay and trans panic defense and strengthen the city’s hate crimes law.
“It is heartening that this necessary legislation also includes provisions strengthening protections and legal recourse against other hate crimes,” the statement says.
“The horrific events of the past weekend, including the defiling of our beloved historic Houses of Worship, provide another reminder that we must all stand united against hate and must use the full force of the law to prosecute all hate crimes,” the statement continues. “This battle is not over. We thank the Council for their action today, as we all reaffirm our vow that hate has no place in the District of Columbia.”