The Maryland Senate Judicial Proceedings Committee on Feb. 5 held a hearing on a bill that would ban the use of the so-called panic defense in the state.
Senate Bill 46, sponsored by state Sen. Clarence Lam (D-Baltimore and Howard Counties), would ban a defendant’s use of a victim’s race, color, national origin, sex, gender identity or sexual orientation as an excuse for violence committed against them.
“This bill will insure that the defense cannot be used to mitigate murder to manslaughter, for example, and is not a defense to assault in any way,” Lam told the committee.
He added that the continued use of this defense fuels stereotypes, hate crimes and violence against LGBTQ people and other affected communities by blaming the victims for the crimes committed against them, and this “implies their lives are less than others.”
FreeState Justice Legal Director CP Hoffman told the committee that “despite the significant advances that the LGBTQ+ community has seen over the past couple of decades, we still face significant discrimination and violence at rates significantly higher than state and national averages.”
“We have seen multiple cases in Maryland where someone was charged with first degree murder and they were able to get that reduced to second degree murder or to either voluntary or involuntary manslaughter, through the use of a ‘panic’-style defense,” Hoffman testified.
Lambda Legal Senior Attorney Sasha Buchert, D’Arcy Kemnitz of the National LGBT Bar Association and Maryland ACLU Legislative Outreach Coordinator Jamie Grace Alexander, also representing the interests of Maryland’s Black transgender community, also testified in support of the ban.
“In 2020 there was a record number of murders targeting transgender people, particularly transgender people of color,” Buchert said, noting the brutal nature of the killings that included beatings and burnings.
Alexander told the committee that while this bill would impact other communities, “I’m here to specifically address the origins and consequences of this defense for my community.”
“Disclosure should be left to the LGBTQ person in order to reduce already disproportionate violence,” Alexander explained, stating Black trans women have the most to lose from “outing” and other forms of “phobic violence.”
This bill, and its companion sponsored by state Del. Julie Palakovich Carr (D-Montgomery County) in the House of Delegates, failed to advance in the previous session, which was shortened due to the pandemic.
“Because of the early adjournment of the session, we didn’t have time to pass it or address it fully in the Senate,” Lam said.
He also pointed to the Attorney General Brian Frosh’s letter of support for this bill, which states “the discovery or perception of a person’s racial, sexual or gender identity can never be adequate provocation for murder or assault.” The letter also notes under Maryland’s current criminal law, discovery of a spouse having sex with another person is similarly “inadequate provocation” for violence.
State Sen. Michael Hough (R-Carroll and Frederick Counties), however, questioned if bias rage based on infidelity was actually similar to an LGBTQ “panic defense,” asking, “How do you square the two? They seem much different.”
Hoffman responded that this was a broader application of the infidelity bias-rage defense currently articulated in state law.
Gavin Patashnick from the Maryland State’s Attorneys’ Association also clarified that “there is no defense for diminished capacity when it comes to murder, so you cannot claim that because I had diminished capacity I could not form the intent for murder” as a general principle of law.
He added there are other examples in Maryland law of restrictions on defenses being used in certain situations.
State Sen. Charles E. Sydnor, III, (D-Baltimore County) wanted to know why race was added to essentially an LGBTQ “panic defense” ban.
Lam said it was to be as inclusive as possible because otherwise “it left open the possibility that someone could be discriminated against on the basis of race.” He also addressed the intersectionality of those who identify as both a member of the LGBTQ and other racial or ethnic communities, again citing hate crimes data where there was an overlap in acts committed.
Kemnitz, whose organization is leading national efforts to ban what she termed “a courtroom gimmick,” noted this matter is also being debated in Virginia and other states.
“This issue is also being heard in Virginia right now,” Kemnitz said. “And it’s being heard because of the frequency in which we see individuals who have ended up behind a defendant’s chair in a courtroom saying, ‘They brought it out in me. I did it because of who they are.’ Essentially, it blames a victim a second time, and it works.”
“And it further ensures that victims receive the justice that they are due,” she said.
Similar legislation has already passed in 12 jurisdictions and is advancing through Virginia and D.C. as well. A similar measure is also before Congress.
“Violent defendants cannot be allowed to claim that the victim’s identity was somehow to blame for the violence committed against them,” Lam told the committee, adding that such behavior can no longer be tolerated in Maryland.