On June 30th, New York became the seventh state to ban what is referred to as the “gay and trans panic defense”. Under the new law (Ch.45, L. 2019) that became effective immediately, a defendant is now precluded from raising the defense of extreme emotional disturbance upon discovering a victim’s sexual orientation, sex or gender. The defense had been used to mitigate a defendant’s culpability in a murder case by reducing the crime to manslaughter in the first degree.

A number of defense organizations have opposed the law on the ground that it violates a defendant’s right to due process by preventing an individual from raising a defense at trial or for purposes of plea bargaining. This column will explore the new law and the legal challenges it may face.

Background

The “gay panic defense” has its genesis in a theory that latent homosexuality is a mental disorder. Edward Kempf, a clinical psychologist, first coined the phrase “homosexual panic” in the 1920s when he published a series of papers describing a new psychological disorder. See Comstock, 102 Harv. L. Rev. 1519 (1989). According to Kempf, certain individuals, who were latent homosexuals, were afflicted with a panic disorder fueled by an internal conflict between their feelings of attraction to individuals of the same sex and a societal fear of homosexuality.

The “homosexual panic disorder” was briefly listed as a psychiatric disorder by the American Psychiatric Association. In 1973, however, the Association removed homosexuality as a psychiatric disorder from its Diagnostic and Statistical Manual of Mental Disorders. Shortly thereafter, the homosexuality panic disorder was also stripped of any recognition.

The first use of the gay panic defense in a legal setting was almost 60 years ago in California. In People v. Stoltz, 16 Cal. Rptr. 285 (Cal Ct. App. 1961), the defendant, who was accused of murder, presented evidence that he killed the victim after the victim made unwanted homosexual sexual advances towards him. Two doctors testified for the defendant that the defendant killed the victim in a homosexual panic. The jury ultimately rejected the defendant’s defense and convicted him of murder.

In New York the defense has been raised occasionally at trial. In People v. Cass, 18 N.Y.3d 553 (2012), the defendant admitted strangling his roommate in a Brooklyn apartment after they began arguing. During his confession, he admitted that he “just lost it” and “snapped” when his roommate grabbed his genitals and made other sexual advances toward him during their argument.

At trial, the defendant admitted killing the roommate, and raised a defense of extreme emotional disturbance, claiming that his violent response to the unexpected sexual advances was fueled by mental illness caused by sexual abuse he suffered as a child. Ultimately, the jury rejected the defense and convicted him of murder.

The defense has also been utilized in the plea bargaining process. In 2013, a transgender woman, Islan Nettles, a 21-year-old assistant at a fashion company, was attacked after midnight while walking with two transgender friends. They encountered a group of young men, one of whom was James Dixon, who began chatting with Ms. Nettles. One of Dixon’s friends began ridiculing him, telling him “that’s a guy.”

According to a confession given by Dixon, he became enraged and flew into a “blind fury” when he realized that he was talking to a transgender woman, stating “I just remember lashing out.” He said that he then pushed himself away from Nettles and started to walk away when Nettles shoved him from behind, forcing him to trip.

He got to his feet quickly, turned, and hit her with his right hand, knocking her to the sidewalk; he punched her a second time as she lay on the ground, apparently unconscious. Ms. Nettles died five days later of her head injuries.

Ultimately, the defendant pled guilty to manslaughter and received a sentence of twelve years in prison. Ms. Nettles’ family and various activists, claimed that the sentence would have been harsher had Dixon not have been able to raise the “trans panic” defense. This case, in part, fueled a movement to ban the defense, and ultimately a bill was introduced by State Senator Brad Hoylman that was eventually enacted into law.

Thus, New York joined a national movement, beginning with California in 2014, to ban this defense which, activists argue, codifies discriminatory attitudes in the legal system. In addition, it is argued that the use of the defense reinforces anti-gay or anti-gender sentiment and provides justification for violence against individuals who are gay or transgender.

Due Process Implications

Earlier this year, the National Association of Criminal Defense Attorneys issued a statement in which it opposed, in general, any legislative prohibition of specific defenses that would permit a defendant to mitigate or justify his conduct. In the statement, the organization noted that the Due Process Clause of the Constitution includes the right to present any evidence that “shows that an accused person either did not commit the crime or that his actions were excused, justified or mitigated in some way.” NACDL statement, Feb. 16, 2019.

The Bronx Defenders organization also issued a statement in opposition to the bill introduced by State Senator Hoylman. While the organization acknowledged that “at the core of the Gay and Trans Panic Defense is abhorrent homophobia and transphobia,” it opposed eliminating the defense. In the statement, the organization noted that the new law would infringe on a defendant’s right to raise a defense. It concluded that “[s]tatutes designed to prohibit certain defenses undermine the ability of defendants to present a defense and are not an appropriate means to correct these deep-rooted societal issues.”

The new law may ultimately be challenged in New York on constitutional grounds. On the one hand, the U.S. Supreme Court has held that, whether rooted in the Due Process Clause or the Confrontation Clause, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683 (1984). The right to due process is guaranteed by the U.S. and New York State Constitutions. See People v. Robinson, 89 N.Y.2d 648 (1997).

At the same time, the right to present a defense is not absolute and legislatures are free to eliminate or narrow criminal defenses. Montana v. Egelhoff, 518 U.S. 37 (1996). The New York legislature has, on numerous occasions, placed limitations on certain defenses. For example, the right to claim justification or self-defense is limited, in some cases, by the duty to retreat. The right to raise a defense to a charge of rape is not permitted based on a defendant’s mistaken belief in the age of the victim. Nor can a defendant raise, as a defense to any crime, a mistaken belief in the state of the law.

When a state’s authority to limit a defense is challenged under the Due Process Clause, the Supreme Court has held that a court must determine whether “the law offends some principle of justice so rooted in the traditions and conscience of the people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 202 (1977). To be “fundamental”, the court held that a principle must have been “deeply rooted” in our nation’s tradition and conscience at the time the Fourteenth Amendment was adopted. In addition, in determining whether a principle is “fundamental” for this purpose, the Supreme Court will determine whether it has been uniformly followed by the states. Montana v. Egelhoff, 518 U.S. at 48.

In Montana v. Egelhoff, the court upheld a state law, that precluded evidence of voluntary intoxication from being admitted to negate mens rea. Applying the test in Patterson, the court concluded that the common law practice of considering intoxication in determining mens rea had not taken root until the end of the 19th century. As a result, the principle did not have sufficient longevity to meet the Patterson definition of “fundamental”. As a result, the Montana statute did not offend the Due Process Clause.

It should be noted that the “gay panic defense” is of recent vintage within the legal system and less than half of the 50 states have reported court opinions discussing gay or trans panic defenses. Jordan Blair Woods et al., Model Legislation for Eliminating the Gay and Trans Panic Defense, 2016. Thus, the defense would not appear to meet the definition of “fundamental” for the purposes of the Patterson due process test.

In Patterson, the court also held that a state can consider whether a statute that limits a criminal defense serves some public interest: “the subtle balancing of society’s interests against those of the accused have been left to the legislative branch.” Patterson, 432 U.S. at 210. As a result, the mere invocation of a defendant’s right to present a defense cannot automatically and invariably outweigh countervailing public interests.

For example, in People v. Williams, 81 N.Y.2d 303 (1993), the New York Court of Appeals upheld a rape shield law that prevented the defendant from presenting evidence that the complainant had previously engaged in consensual group sex with black males. The defendant argued that he was being denied due process in being deprived of his right to present evidence in his own defense.

In rejecting that argument, the court held that a defendant’s right to present a defense is not absolute. The court upheld the use of the statute, as applied in this case, based on the state’s “legitimate interest in giving rape victims heightened protection against surprise, harassment and unnecessary invasions of privacy.” Id. at 313.

Should there be a court challenge to the new law prohibiting the use of the gay panic defense, proponents of the law will undoubtedly argue that it serves New York’s public policy of banning discrimination based on sexual orientation or gender identity. Ultimately, the Court of Appeals will have to determine whether this strong public policy outweighs a defendant’s right to due process in presenting a complete defense.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis/2019). He is a former state Supreme Court Judge.