New Jersey Statehouse/photo by Carmen Natale

A bill that would prohibit the use of the so-called gay panic defense in criminal cases, where a defendant claims provocation by sudden knowledge of the victim's sexual orientation or gender, is working its way through the New Jersey Legislature.

The measure was passed unanimously by the state Assembly Monday and now moves to the Senate for consideration.

If it becomes law, New Jersey would join seven other states now banning the defense in criminal cases, according to sponsors. There are California, Connecticut, Hawaii, Illinois, Nevada, New York and Rhode Island.

Tom Prol, the first openly gay president of the New Jersey State Bar Association and a founding and current executive board member of Asbury Park-based LGBTQ rights organization Garden State Equality, said the bill was long overdue in prohibiting a common legal strategy in criminal cases that amounts to discrimination.

"New Jersey is on its way to joining the other states … that have banned the gay and trans 'panic' defense because it legitimizes and excuses violent criminal acts against our community," said Prol, a partner at Sills Cummis & Gross in Newark, in a recent interview.

"No New Jersey jury should hear that an LGBTQ person 'had it coming' simply because of who they are. I am grateful that the state Assembly unanimously agreed that we must end the discriminatory legal strategy that allows murderers of LGBTQ people to use bigotry as a defense and blame their victim," Prol said.

A-1796, sponsored by Assemblymen John McKeon, D-Essex, and Joann Downey, D-Monmouth, passed by a 73-0 vote in the lower chamber on Monday. It was heard before the Assembly Judiciary Committee on Nov. 18.

It is intended to prevent a defendant "from seeking the reduction of a murder charge to manslaughter committed in the heat of passion when allegedly provoked by the discovery of, knowledge about, or potential disclosure of the homicide victim's actual or perceived gender identity or expression, or affectional or sexual orientation," as stated in the bill.

An identical Senate version, S-2609, was introduced in that chamber on May 3, 2018, and is awaiting a committee hearing. It is sponsored by Sens. Joseph Lagana, D-Bergen, and Vin Gopal, D-Monmouth, with Troy Singleton, D-Burlington, as a co-sponsor.

Prol, who is also a member of the American Bar Association's governing body, was the sole person to testify in support of the legislation before the Assembly Judiciary Committee on Nov. 18. No group or person testified against the bill.

"The defense is defined by the American Bar Association LGBT Bar as 'a legal strategy which asks a jury to find that a victim's sexual orientation or gender identity is to blame for the defendant's violent reaction, including murder,'" Prol told lawmakers at the hearing. "It must be noted that gay and trans panic is not an affirmative legal defense; it is a tactic to strengthen the defense by playing on prejudice. … This legally sanctioned discrimination against one's sexual orientation and gender identity must cease."

Under current law, a homicide that would otherwise qualify as murder is reduced to manslaughter if the jury finds that the homicide was committed "in the heat of passion" resulting from a reasonable provocation.

A provoked heat-of-passion manslaughter is a crime of the second degree punishable by five to 10 years' imprisonment, a fine of up to $150,000, or both, while murder is a crime of the first degree, punishable by a term of imprisonment for a period ranging from 30 years to life, depending on the circumstances of the act, a fine of up to $200,000, or both.

Sponsors of the New Jersey bill say the legislation was conceived in part by one of the more well-known cases invoking the trans panic defense in New York, in the trial resulting from the death of Islan Nettles. Nettles was beaten to death in Harlem in 2013 after James Dixon discovered she was a transgender woman. At the 2016 trial, Dixon attempted to justify his violence by arguing Nettles provoked him, according to reports. Dixon, originally of Brooklyn and now 29, was convicted and is serving 12 years in jail.

"The 'gay panic or trans panic' defense is not a freestanding defense to criminal liability, but rather a legal tactic. It's used to diminish the reason for a defendant's violent reaction that asks a jury to find a victim's sexual orientation or gender/expression as the cause," said McKeon, a practicing attorney in addition to serving as a legislator, in a statement. "Whether the person was gay, transgender or heterosexual, sexual orientation should not have any bearing on determining a person's guilt in a murder trial. It is prejudiced against the LGBTQ community."

Added Downey: "This bill is a major step forward in addressing discrimination in our court system, and showing New Jersey's LGBTQ community that we stand with them in solidarity against any type of discrimination and hatred. The so-called 'gay panic defense' or 'trans panic defense' has never been more  than a transparent attempt to allow the assault or murder of LGBTQ individuals to happen with impunity, and it is long past time that we ended this dark chapter in American legal history."

The New Jersey bill would take effect immediately after being signed by Gov. Phil Murphy into law.