Cuomo Plans New Push to End 'Gay Panic' Defense by End of Session
A bill to prohibit defendants from using that defense has moved in the State Senate this year, but has yet to make it out of committee in the State Assembly.
May 28, 2019 at 04:52 PM
5 minute read
Legislation to end what's called the “gay panic” defense, which allows those facing murder charges to say their actions were driven by an extreme emotional disturbance incited by a victim's sexual orientation or gender identity, gained new momentum Tuesday with renewed support from Gov. Andrew Cuomo.
A bill to prohibit defendants from using that defense has moved in the state Senate this year, but has yet to make it out of committee in the state Assembly.
Cuomo, in a radio interview, called the defense “absurd” and included it in a list of his top priorities for the final four weeks of this year's legislative session. Lawmakers are scheduled to leave Albany for the year in June.
“End the 'gay panic' defense—which is absurd—that I panicked when I found out the person was gay and that's the justification for my crime,” Cuomo said.
Legislation to end the defense is carried in the state Senate by Sen. Brad Hoylman, D-Manhattan, who is both the chair of the Senate Judiciary Committee and the only openly gay members of the chamber. He welcomed the governor's support in an interview with the New York Law Journal.
“I think it's terrific that the governor is lending his support to ending the vestige of the last century—the antiquated notion that gay and transgender people are somehow deviants and to be blamed for their own murders,” Hoylman said. “It's past time that we struck this defense from our books.”
The legislation would not eliminate the ability for a defendant to say they were influenced by an extreme emotional disturbance in general, but it would set certain parameters on that defense. It would be prohibited when the defendant acted in response to the victim's sexual orientation, sex or gender, according to the bill.
“It shall not be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance upon the discovery, knowledge or disclosure of the victim's sexual orientation, sex, gender or sex assigned at birth,” the bill reads.
That's intended to eliminate the “gay panic” defense, but the legislation also aims to prevent what's referred to as the “trans panic” defense. That's when a defendant uses a person's gender identity or status as a transgender individual to front an affirmative defense to murder charges.
Defendants would be precluded from using such a defense when faced with charges of murder in the first degree, murder in the second degree and aggravated murder.
It's not a new issue in the legal community. The American Bar Association approved a resolution in 2013 urging lawmakers, at both the federal and state levels, to pass legislation explicitly prohibiting both the “gay panic” and “trans panic” defenses. The LGBT Bar Association has largely led the movement to eliminate the defense.
Michael Miller, the current president of the New York State Bar Association, also came out against the defense in a statement to the New York Law Journal on Tuesday.
“NYSBA is deeply committed to ensuring equality under the law for all, and the 'gay panic' or 'trans panic' defense flies in the face of that idea,” Miller said.
Hoylman first sponsored the bill last year, but it failed to make it through committee when Republicans controlled the state Senate. This year, after Democrats took control of the chamber, it's moved out of committee and could come to the floor for a vote at any time.
But it has yet to move in the Assembly, where it's sponsored by Assemblyman Brian Barnwell, D-Queens. It's been stuck in the Codes Committee since Barnwell reintroduced it earlier this year.
A different version of the legislation is also carried by Assemblyman Daniel O'Donnell, D-Manhattan, who is a former public defender and openly gay member of the lower chamber. That version, which is also sponsored by Hoylman, hasn't moved in either chamber.
O'Donnell's bill would approach the issue in a different way, by saying that a nonviolent sexual advance or discovery of a person's sexual orientation or gender identity does not constitute a “reasonable explanation or excuse” for an extreme emotional disturbance. O'Donnell has carried that bill with Hoylman since 2015.
Cuomo first started to push for the defense to be eliminated last year, when he included the proposal in his executive budget. His support was inspired by the story of a transgender woman, Islan Nettles, who died in 2013 after she was struck by a man who discovered her gender identity.
He also included the proposal in this year's executive budget proposal, but it fell out of negotiations before the spending plan was approved by lawmakers at the end of March. The bill's supporters will have the next four weeks to convince their colleagues to approve the measure before this year's legislative session is scheduled to end in June.
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