The Advocate July/Aug 2022
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New Hampshire Takes Step to Outlaw 'Gay and Trans Panic Defenses'

Man in handcuffs

The state of New Hampshire has taken another step closer to joining more than a dozen other states that have prohibited criminal defendants accused of manslaughter from referring to the victim’s gender, gender identity, or sexual orientation as a defense.

New Hampshire’s House voted 223-118 last Thursday to outlaw this so-called gay panic defense, according to the Associated Press. Supporters of the ban said defendants have used it in other parts of the country to excuse the murder of LGBTQ+ people.

Opponents of the ban said that such a ban was unnecessary in the state. Additionally, they voiced concern about banning the use of any defense.

The bill will now go to the state’s Senate for a vote.

Gay and trans panic defenses operate to argue provocation, Carsten Andresen, a criminal justice professor at St. Edward’s University in Austin, recently told The Appeal. The defendant says they were provoked into violent action by the victim’s sexuality or gender identity.

“I describe it like carbon monoxide,” Andresen told the website. “There’s a hazardous byproduct of putting out all these toxic ideas about gay people and other LGBTQ+ people — this idea that they’re predatory. It’s ridiculous.”

Andresen said he has been able to identify over 200 cases in the last 50 years in which these panic defenses have been used. There could be more.

The Williams Institute at the UCLA School of Law reported that that gay and trans panic defenses have appeared in public court opinions in about half of U.S. states since the 1960s.

Andresen’s research shows that these defenses can still be effective. For instance, in 104 cases he examined, murder charges were reduced for people using the defense 33 percent of the time. That resulted in shorter prison sentences. And even a handful of cases ended in acquittals.

Even in the trial of Matthew Shepard’s killers in Laramie, Wyo., 20 years ago, one of the two tried to justify his action by claiming that Shepard had made an unwanted sexual advance. Both, however, were ultimately convicted.

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