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State representatives Matt Soper (R-54) and Leslie Herod (D-8), co-prime House sponsors, during the second reading of the original HB20-1307. Photo courtesy of One Colorado

Colorado Joins 10 Other States In Banning the Gay Panic Defense

Colorado will be the 11th state to block use of the controversial defense strategy, which seeks to blame violent actions, including murder, on the victim's sexual orientation.

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In 1999, one year after Matthew Shepard was brutally murdered in Laramie, Wyoming, lawyers for one of the defendants attempted to blame “gay panic” for their client’s actions. The LGBT Bar defines the LGBTQ+ panic defense as, “a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder.” In other words: The perpetrator is justifying his or her actions by saying that the victim’s sexual orientation or gender identity caused their loss of control.

The judge in the Shepard case deemed the defense inadmissible. Though, as the American Bar Association (ABA) points out, the decision was “not due to the illegitimacy of the gay/trans panic defense, but instead due to Wyoming’s statutory insanity defense construct.”

While it wasn’t successfully applied against Shepard’s killers, the gay/trans panic defense has been used to acquit or reduce the severity of charges that assailants are convicted of across the country. The precise number of times it has been used isn’t clear, says D’Arcy Kemnitz, executive director of the National LGBT Bar Association and Foundation.

In 2013, the ABA approved a resolution urging governments to curb the use of the defense. This month, Colorado will become the 11th state to outright ban the use of the gay/trans panic defense. (Federal legislation outlawing the defense strategy was introduced in 2018 and 2019 but has yet to move forward.)

“Two women who are living across the street from each other—both are murdered. If one happens to be a lesbian and the other one happens to be straight, the one who is a lesbian, her perpetrator could be relieved of any criminal liability. To me, that’s just not right,” says state Rep.  Matt Soper, one of the bill’s co-sponsors and a conservative Republican who represents two rural counties in western Colorado. “This was an issue of fairness. You shouldn’t be able to get away with a crime based on the victim’s sexual or gender identity.”

Vocal opposition to the bill was limited, but Daniel Ramos, executive director of One Colorado, a statewide LGBTQ advocacy organization, said he heard from a number of legislators who thought the legislation seemed “unnecessary” because the LGBTQ community is already protected under the state’s hate crimes law. “Though we haven’t seen much success with it [the gay/trans panic defense], the fact that we’ve seen many efforts to use it is a reminder that we need to make sure it’s no longer an option,” Ramos says.

Though Soper was confident HB20-1307 had the votes to pass, it nearly didn’t make it into law this year. The bill entered through the House on March 9, with four Republicans supporting it, but it was introduced in the Senate right before the coronavirus shutdown forced the legislature into a two-month hiatus. As lawmakers worked to wrap up the session in just three weeks upon their return, the gay panic bill was caught up in a “bloodbath” of killed bills and was indefinitely postponed on May 26.

Rep. Brianna Titone (D-27), the state’s first transgender legislator, felt strongly that the bill couldn’t wait another year. She put in a late bill request and wrote letters to her colleagues to see if they would reconsider the bill. “It really just comes down to the fact that we’re putting legislation forward that is meant to protect people who are vulnerable,” she says. “There’s no reason why we should have a get-out-of-jail-free card to commit murder or violence against somebody because of their identity.” She added: “This bill would help protect black trans women. The Black Lives Matter protests made it clear to me that we need to step up our allyship for them.”

The renamed SB20-221, which Titone sponsored, passed the Senate unanimously on June 10 and received just one no vote in the House, from Republican state Rep. Rod Bockenfeld, on June 12—the four-year anniversary of the Pulse nightclub shooting in Orlando. “I think it’s a fitting tribute to those folks who lost their lives, that we’re passing legislation to protect people that are LGBTQ from violence and murder,” Titone says.

Gov. Jared Polis has until July 14 to sign it into law, which he is expected to do.

SB20-221’s passage is timely. Not only did it occur during Pride Month, but it comes amid heightened discrimination against individuals who identify as LGBTQ+. In 2018, 19 percent of the reported victims of hate crimes were targeted because of their sexual orientation or gender identity, per the FBI, and the number of crimes against LGBTQ+ individuals appears to be on the rise (and undercounted).

“Crimes across the LGBTQ+ community are highly underreported,” Kemnitz says. “That’s the purpose of passing these kinds of laws—to show those who are victims of violent assaults…that this is not the sentiment of the community. That Coloradans don’t believe that individuals who are perceived to be or self-identified as LGBTQ+ individuals deserve to have crimes committed against them.”

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