Lawmakers propose to outlaw LGBT ‘panic’ defense in criminal trials during ’22 session

House sponsor was a hate crime survivor himself while a student at UCF

By: - September 29, 2021 1:40 pm

The Florida Capitol, January 2021. Credit: Michael Moline

Legislation filed for the Florida legislative session that opens in January would bar use of the “gay panic” defense — arguments before a judge or jury that a victim’s sexual orientation or gender identity so freaked out the assailant that the assault was reasonable.

The House sponsor — Democrat Carlos Guillermo Smith of Orange County — was himself gay bashed while a student at the University of Central Florida, as reported by the Orlando Sentinel.

“As a survivor of hate violence, I understand how gay or trans ‘panic defense’ can be used as a legal strategy to justify or excuse violence against the LGBTQ community,” Smith said in a written statement on Wednesday.

“It happened to me. The continued use of panic defense in legal proceedings perpetuates anti-LGBTQ bias and shifts blame onto the victims of violent crimes rather than their perpetrators, which is why Florida must follow the lead of several states who passed laws prohibiting its use in court.”

The Senate sponsor is Broward County Democrat Lauren Book, her party’s leader in the upper chamber.

“It is discriminatory and unacceptable for LGBTQIA+ individuals to be held responsible for their own assaults or even murders on the grounds of simply being themselves,” she said in her own statement.

“The current state of the law which allows someone to assault another person simply based on sexual or gender identity cannot stand — the use of a ‘panic’ defense is essentially doing legal gymnastics to defend a hate crime.”

The proposed Gay and Transgender Panic Legal Defenses Prohibition Act is now pending in both chambers as SB 374 and HB 205.

“The Legislature finds that gay and transgender panic legal defenses, which continue to be raised in criminal proceedings, characterize sexual orientation and gender expression or gender identity as objectively reasonable excuses for the loss of self-control, and thereby illegitimately attempt to mitigate the responsibility of a perpetrator for harm done to a lesbian, gay, bisexual, or transgender individual,” the legislation says.

“A nonviolent sexual advance or the perception or belief, even if inaccurate, of the sex, sexual orientation, gender identity, or gender expression of an individual may not be used as a defense to a criminal offense, to excuse or to justify the conduct of an individual who commits a criminal offense, or to mitigate the severity of a criminal offense during sentencing,” it says.

The sponsors noted that the American Bar Association called upon states to eliminate the defense in 2013 but that only 17 have done so.

An analysis of 104 cases nationwide showed that the defense has reduced a defendant’s murder charges in 32 percent of cases, resulting in lighter sentences. Florida had five cases reported as of 2020.

Defendants typically claim temporary insanity or diminished mental capacity; that they’d been subjected to provocative advances; or self-defense, according to a lawyer’s group, LGBTQ+ Bar,

This marks the second year in which Book has proposed the legislation. Also last year, Book sponsored a resolution to apologize for the excesses of “Johns Committee,” created to investigate the NAACP but that later branched out into harassing LGBT college professors and students and political dissenters.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.