New Hampshire is one step closer to banning the so-called “gay panic defense,” a legal defense strategy used to justify violent crimes against LGBTQ people due to “panic” over their sexual orientation or gender identity.
Last Thursday, the Republican-controlled New Hampshire House voted 223-118 to ban the maneuver, also referred to as the gay/trans panic defense or LGBTQ panic defense. It is now up to the Republican-controlled Senate.
The bill, H.B 238, was introduced by state Rep. Joshua Query (D).
“This bill is entirely constitutional, does not dismiss traditional self-defense lawsuits, and does not deny existing due process defenses,” he said. “This legislation will correct a dangerous and life-threatening oversight that is needed to protect the safety of LGBTQ+ people in New Hampshire.”
Opponents of the bill argued that banning any specific defense establishes a bad precedent.
A defendant “needs to be able to tell the whole story,” said state Rep. Max Abramson (R), “warts and all to a jury of his peers. It is a matter of life and death.”
In 2013, the American Bar Association released a unanimous resolution asking all governments, from federal to state to tribal to local, to ban the defense, but as of now, only fifteen states have done so.
“There are unfortunately too many places throughout America… where a judge could hear that sort of transphobic or homophobic argument and think, ‘Yeah, I would have a similar reaction,’” trans Virginia Delegate Danica Roem (D) said after her state banned the defense in April. “That is extremely real.”
According to the Movement Advancement Project, no state allows the defense to be used on its own, but it is often used alongside other defense strategies as a way to advocate for leniency.
The defense has been used in several prominent cases. It gained national attention in a 1995 case where a gay man, Scott Amedure, told his straight friend Jonathan Schmitz that he was attracted to him on the Jenny Jones Show.
Three days later, Schmitz shot Amedure and turned himself into police, and he argued in court that he was “embarrassed” on national TV. He avoided a first-degree murder conviction and was convicted of second-degree murder.
The use of the “gay panic” became even more publicly discussed with the murder of Matthew Shepard, where his killers claimed that Shepard had “come onto” one of the duo. Similarly, the “transgender panic” defense gained prominence in the way of the 2004 murder of Gwen Araujo in Newark, California.
Criminal justice professor Carsten Andresen recently told The Appeal that he has found over 200 cases that have used this defense in the last 50 years, though he suspects there are hundreds more.
“I describe it like carbon monoxide,” he said. “There’s a hazardous byproduct of putting out all these toxic ideas about gay people and other LGBTQ+ people — this idea that they’re predatory. It’s ridiculous.”