ABOVE: D.C. Council Chair Phil Mendelson (D-At-Large) introduced a version of the bill to ban the LGBT panic defense last year. (Washington Blade file photo by Michael Key)
The D.C. Council’s Judiciary and Public Safety Committee voted unanimously Nov. 23 to approve a bill supported by LGBTQ activists that bans the use of the so-called gay and transgender panic defense in criminal trials, clearing the way for the expected passage of the legislation by the full Council in December.
Supporters of the legislation say it is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or gender expression is to blame for a defendant’s criminal act, including murder.
The attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
The measure approved by the Council committee, the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, also calls for revising the city’s hate crimes law to clarify a provision that prosecutors say has confused juries.
LGBTQ supportive prosecutors say the provision – which is also part of hate crimes laws in other states as well as in the federal hate crimes statute – has been interpreted by judges to require proof by prosecutors that hatred was the sole motive of a crime such as assault or murder rather than just one of other possible motives. Legal observers have said the “sole” motivating requirement is often difficult to prove and has resulted in juries finding defendants not guilty of a hate crime.
The bill approved by the Council committee on Monday clarifies that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats by stating, “A designated act need not solely be based on or because of an accused’s prejudice.”
The Maryland Legislature earlier this year approved a bill making a similar change to the Maryland hate crimes statute. And U.S. Sens. Amy Klobuchar (D-Minn.) and Lisa Murkowski (R-Alaska) introduced a bill in February calling for the same clarification of motive in the U.S. Mathew Shephard and James Byrd Jr. Hate Crimes Prevention Act of 2009. The bill has been stalled in the Republican-controlled Senate.
The D.C. bill is named after Bella Evangelista, a transgender woman who was shot to death on a D.C. street in 2003 by a 22-year-old man; and after Tony Randolph Hunter, a gay man who died from a head injury sustained from a fall after witnesses said he was attacked and assaulted by a 20-year-old man while walking to a gay bar in 2008. The men charged in the two cases attempted to use the panic defense after their arrests.
D.C. Council Chair Phil Mendelson (D-At-Large) and Council member David Grosso (I-At-Large) introduced separate versions of the bill to ban the LGBT panic defense last year. The two bills were similar except for a provision in Grosso’s bill calling for expanding the ban on use of the panic defense from a victim’s sexual orientation and gender identity and expression to that of race, color, religion, national origin, and disability.
The bill approved by the Judiciary and Public Safety Committee on Monday does not include the expanded categories of hate crime victims in the Grosso bill.
“I’m a passionate supporter of the human rights of criminal defendants, a fair and swift trial, and alternatives to incarceration,” Grosso said in a statement at the time he introduced his bill. “All of that is possible, though, without resorting to a defense that is premised on bias against lesbians, gay, bi and transgender individuals,” he said. “A defense that exploits bias simply should not be acceptable.”
Among those speaking in favor of the bill during Monday’s committee hearing were Council member Charles Allen (D-Ward 6), who chairs the Judiciary and Public Safety Committee; and Brooke Pinto (D-Ward 2).
“With this important bill, no longer will a defendant be able to justify, excuse or mitigate their violent and egregious and unacceptable conduct,” Pinto said. “With this bill, LGBTQ plus District residents will enjoy the full protection of the law. With this bill, those who commit violence against them will no longer be able to escape criminal liability for their violent act.”
