On Jan. 21, 2020, Governor Phil Murphy signed "A1796/S2609 Prohibiting the Gay and Trans Panic Defense for Murder" into law. Effective immediately, the law made New Jersey the ninth state to ban this tactic, which the American Bar Association (ABA) defines 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." Governor Murphy declared: "Under this law, a defendant [is] prohibited from using a victim's actual or perceived gender identity or expression or affectional or sexual orientation as a heat of passion defense to murder in New Jersey courts."

Was the law banning the gay and transgender panic defense actually necessary to curtail a threat or concern impacting the LGBTQ community in the Garden State? Research confirms that the answer is, quite simply, yes.

The National Effort to Implement Gay and Trans Panic Defense Bans

A decade ago, ABA leaders and the National LGBT Bar Association took a deep dive into LGBTQ murder cases around the country, conducting considerable nationwide research on the subject and issuing a report. In August 2013, based on that report, the ABA adopted Resolution 113A to urge "federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the 'gay panic' and 'trans panic' defenses. …" The ABA also recommended that courts, when asked, instruct juries to ignore a victim's gender or sexual orientation in deliberations. The Resolution and report are available at https://lgbtbar.org/wp-content/uploads/2014/02/Gay-and-Trans-Panic-Defenses-Resolution.pdf

Since then, Illinois, Rhode Island, Nevada, Connecticut, Maine, New York and Hawaii have joined the first state to do so, California, in advancing legislation prohibiting the gay and trans panic defense. Similar legislation is pending in Massachusetts, Minnesota, New Mexico, Texas, Washington and the District of Columbia. On the federal level, Sen. Edward Markey (D-Mass.) and Rep. Joseph Kennedy III (MA-04) have reintroduced the "Gay and Trans Panic Prohibition Act" which would prevent use of the defense in federal court.

In the United States, the LGBTQ community makes up 3.5% of the total population yet is vastly over-represented in hate crime statistics. Sexual orientation consistently ranks as the third highest motivator for hate crime incidents at 17% of total attacks, behind race (51%) and religion (18%). Over the course of LGBTQ people's lifetimes, one in five will experience hate crimes, and one in four transgender people will as well. Those individuals at the intersection of homophobia, transphobia, and racism, face worse statistics.

Between 2013 and 2017, of the 102 known transgender people killed in hate crimes in the United States, 75 were black or African-American. Although these numbers are already highly over representative of the LGBTQ community compared to the United States population, they may actually be higher because often crimes against the LGBTQ community are not recorded as hate crimes by official sources. Moreover, fears of retaliation, discrimination, harassment or being "outted" to friends and family are also concerns that may inhibit LGBTQ victims from reporting crimes against them.

Research into murders of members of the LGBTQ community has documented numerous instances where defendants invoked the gay or trans "panic" defense. The first recorded example was the Aug. 2, 1954, murder of Eastern Airlines flight attendant William T. Simpson in North Miami, Florida. The two defendants, Charles Lawrence and Lewis Killen, claimed that they shot Simpson, a gay man, while "resisting his advances," even though the defendants frequented that area of the local "lover's lane" to rob victims and intentionally targeted gay men. Raising the gay panic defense at trial, Lawrence and Killen were convicted of manslaughter rather than first-degree murder while newspaper headlines proclaimed, "Pervert Colony Uncovered In Simpson Slaying Probe" along with an accompanying article that documented over 500 gay men who "conjugated" in the area; one investigator even claimed that Simpson was looking to become "queen" of the colony at the time of his murder.

Other examples abound, including:

• The 1998 "Jenny Jones" television show-related murder of Scott Amedure by Jonathan Schmitz after Amedure revealed that he had a crush on Schmitz on national television. The defense team argued that Amedure being gay was enough to send Schmitz into a panic and kill Amedure. Schmitz was convicted of the lesser offense of second-degree murder rather than first-degree.

• In 2002, Gwen Araujo was savagely beat to death with a can of food and a frying pan by a group of four men. Ms. Araujo had engaged in sex with two of the men before they learned she was transgender. The defendants were convicted of second-degree murder and voluntary manslaughter without hate crime enhancements after at least one employed the trans panic defense in relation to Ms. Araujo's killing.

• The gay panic defense was not successful in the case of the October 6-12, 1998, torture and murder of college student Matthew Shepard in Laramie, Wyoming. There, the defendants attempted to use the provocation defense, arguing that Mr. Shepard's proposition earlier in the evening, miles from the site of his murder, drove them to kill. One defendant cited an "irresistible impulse" that triggered memories of a childhood sexual assault by a man. The judge in the case stated that he was not sure if such a defense was allowed under Wyoming law. To get around the judge's bar to raising a gay panic defense, the attorney introduced two witnesses to testify that Mr. Shepard was sexually assertive, causing the judge to criticize the defense for invoking it without consulting him.

The Gay and Trans Panic Defense Ban in New Jersey – Ending a Trial and an Appeal Strategy

Upon signing the ban into law, Governor Murphy stated that, "Gay and trans panic defenses are rooted in homophobia and abhorrent excuses that should never be used to justify violence against vulnerable populations …. Defendants have successfully argued that gay or trans panic constitutes heat of passion provocation in order to reduce charges of murder to manslaughter." There is a documented nationwide pattern of successful use of the gay and trans panic defense, as the governor noted in his bill signing remarks. There are also examples of how the defense has been or could have been employed tactically in New Jersey by defendants, something this new law will now prevent going forward.

The 1991 conviction in State v. Affinito, 126 N.J. 340, is instructive that New Jersey defendants can and do try to raise the gay or trans panic defense when facing murder charges. The Third Circuit Court of Appeals reported that, while out on parole following armed robbery and burglary convictions, on Feb. 22-3, 1985, Mr. Affinito joined John Cupsie and Michael Perez drinking at Stash's Tavern in Carteret. Wanting to make use of Cupsie's vehicle, Affinito and his co-defendant, Perez, were involved in the abduction and brutal murder of Cupsie, who was strangled in a junkyard with his body left there in the trunk of a car.

Affinito reportedly gave two statements to the police, according to the court: in the first, he admitted leaving the bar with the victim, Cupsie, but claimed that the victim dropped him off at home. In his second statement, defendant Affinito admitted that he killed the victim "only after Cupsie made homosexual advances toward him." Affinito v. Hendricks, 366 F.3d 252, 255 (2004). At trial, Affinito raised diminished capacity and intoxication defenses, and later argued ineffective assistance of counsel for the way his lawyer handled his efforts to claim a gay panic defense.

Even though the gay panic defense was not successfully raised at trial, it was repeatedly asserted through an exhaustive series of appeals that reached every level of the state and federal judiciaries. Indeed, the amount of judicial recourse and taxpayer funds that were expended as a result of Affinito's pursuit of this legal defense tactic are immense. Affinito was denied relief by the Superior Court, Appellate Division, and certification by the New Jersey Supreme Court. Thereafter, he was denied habeas corpus relief by the federal district court of New Jersey, the Third Circuit Court of Appeals, and the United States Supreme Court. See Affinito v. Hendricks, 543 U.S. 1057 (2005). Lastly, Mr. Affinito was also denied parole in 2018 because the New Jersey Parole Board found, "there is a substantial likelihood that [Affinito] would commit a crime if released on parole at this time."  Affinito v. N.J. State Parole Bd., 2018 N.J. Super. Unpub. LEXIS 2345, 2018 WL 5273866.

A gruesome Jan. 9, 2011, Cliffside Park bathtub stabbing murder and dismemberment of Francisco Gonzalez Fuentes by Pedro Garcia and Wilfredo Sanchez was another example of an attempt in New Jersey to invoke the gay panic defense. Beaten, stabbed to death in a bathtub, and then dismembered, Fuentes' head and body parts were placed in garbage bags and scattered throughout the borough. At trial, defendant Garcia stated that the victim, Fuentes, falsely told others that they were in a relationship, and that he attacked Fuentes because he was terrified that someone would think he was gay. He admitted that a fear of being identified as gay triggered his violent rage, causing him to fatally stab his longtime friend and roommate twice in the neck.

On appeal, Sanchez, who participated in the murder after being woken up by a loud fight between Garcia and the victim, argued that the jury should have been instructed to consider convicting him of a crime of passion, which would have resulted in a lesser prison sentence. Importantly, the appellate panel considered the defendant's gay panic defense on its merits before rejecting its availability to Sanchez based on a factual analysis. That review lent the court's imprimatur to the gay and trans panic defense as legitimate tactic for invoking a "heat of passion" defense due to the victim's sexual orientation or identity.

Conclusion

The gay and trans panic defense allows a murderer to inappropriately blame a victim and suggest to the jury that the victim "had it coming" simply because they are gay or transgender.  It was necessary to ban this discriminatory legal strategy in New Jersey to confirm once and for all that defendants could not offer this defense as a strategy at trial for a diminished capacity or heat of passion defense or as a basis for appeal.

Thomas Prol is a member at Sills Cummis & Gross PC in Newark and an adjunct professor of Law & Sexuality at Seton Hall University School of Law. He was the first openly gay president of the New Jersey State Bar Association from 2016-17. The opinions herein are his own.