Eric Lesh, the executive director of LeGaL, the LGBT Bar Association of New York, and James Castle, of Cozen O’Connor, have an article in today’s New York Law Journal calling on the Legislature to pass proposed legislation to outlaw the “gay and trans ‘panic defense,” which they summarize as, “a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability.” Essentially, the accused uses the sexual orientation or gender identity of the victim as a “reasonable explanation or excuse” to establish extreme emotional disturbance, dropping a Murder charge down to Manslaughter.
Lesh and Castle argue:
These “defenses” have no place in our criminal justice system, which is often viewed as a model for other states. The availability of these defenses in our system sends a message to LGBT New Yorkers—that their lives are not equal.
What’s more, gay and trans “panic defenses” run afoul of New York’s anti-hate legislation enacted nearly two decades ago, which increases the severity of a specific offense motivated by bias.
Since the ABA resolved that states should ban panic defenses, they have been abolished in California and Illinois. Governor Cuomo attempted to put a measure to ban the defenses in his 30-day budget, but he was stymied by the Legislature. Senator Brad Holyman and Assemblyman Daniel O’Donnell have introduced independent legislation to ban them. The bills would amend Penal Law § 125.25(a) to provide: “A non-violent sexual advance or the discovery of a person’s sexual orientation or gender identity does not constitute a “reasonable explanation or excuse” as used in this paragraph.”
Lesh and Castle argue:
Passage of this proposed legislation will alleviate this irreconcilable inconsistency in our criminal justice system and help ensure that those who commit violent acts are unable to profit from unconscious public biases against LGBT people and escape justice. LGBT New Yorkers should not have to live in fear that being out could provide justification for violence against them. It is time for New York to join other states in adopting similar legislation. We have lost too many members of our community to anti-LGBT violence. It’s time to end the “panic.”
While I’m ordinarily hesitant about creating particular carve-outs from defenses, this adjustment seems important if courts are interpreting the term “reasonable” in EED to allow for such “panic” arguments. The legislative memo and the Law Journal piece do not indicate if the gay or trans panic defense has been successful in New York—i.e., whether defendants have convinced judges to allow them to present an EED defense on such grounds. Is this a solution in search of a problem? (UPDATE [6/16/2018]: Eric Lesh provided me with the following cases where the gay/trans panic defense was raised: People v. Cass, 18 N.Y.3d 553 (2012); People v. Spaich, 259 A.D.2d 996 (1999); People v. Foster, 159 A.D.2d 801 (1990). In each of those cases, however, the jury rejected the EED claim by the defendant. However, given that the defense has been successful in cases in other states, I can see the rationale for moving to eliminate the defense in New York proactively. Since EED is a creature of statute and legislative policy judgments, the Legislature is free to make a carve-out.)
The Law Journal article begins by describing the case of People v. James Dixon, a case in which a defendant flirted with a transgender woman. When he discovered that she was transgender, he struck her; she later died of her injuries. The defendant pleaded guilty to Manslaughter 1º, the same result as if he had been charged with Murder 2º and successful in an EED defense. (EED is not a complete defense; it results in a reduction to Manslaughter 1º.) The defendant received 12 years in prison in a guilty plea with the judge; the People sought a greater punishment. The Manhattan DA’s press release said that the defendant pleaded guilty to the top count of Manslaughter 1º, which suggests that the defendant was never charged with Murder 2º.
I’m curious why the Manhattan DA didn’t charge Murder 2º to begin with. Were prosecutors worried about about a gay/trans panic defense from Dixon? Perhaps. Or what’s more likely is that they were concerned about being able to prove intent to kill, since the victim died five days after the crime. Perhaps the charge of Manslaughter 1º reflected the prosecutors’ belief that they would only be able to prove an intent to inflict serious bodily injury. But Lesh and Castle write, “Evidence indicated that [the victim] was repeatedly struck while lying on the pavement, and that her head had been rammed into the pavement..” If that evidence could be proved, it would seem like strong evidence of intent to kill with a deadly weapon (i.e. the pavement). (LC)