‘Gay panic’ defense eliminated in New Hampshire starting next year

By ETHAN DEWITT

New Hampshire Bulletin

Published: 08-21-2023 4:00 PM

Defendants in New Hampshire murder cases will no longer be allowed to use a victim’s perceived sexual orientation or gender identity as a defense, after a law signed by Gov. Chris Sununu this month.

House Bill 315 adds a new limit to the conditions that could downgrade a murder conviction to a manslaughter conviction. Under New Hampshire law, a person who commits a crime that would otherwise be considered murder can have that conviction reduced to manslaughter if their attorney can prove that they were “under the influence of extreme mental or emotional disturbance caused by extreme provocation.” 

Currently, the state’s criminal statute provides no limits to what counts as “extreme provocation” for that defense. HB 315 adds some limits, stating that the defendant cannot point to the discovery of their victim’s “actual or perceived” sexual orientation, gender identification, or gender expression as the source of that provocation.

The bill also clarifies that the defendant can’t use those factors as a defense even if the victim “made a nonforcible romantic or sexual advance towards the defendant.”

HB 315 seeks to end what is known to some as the “gay panic” defense to murder. Research from the Williams Institute at the University of California Los Angeles suggests that the defense is rarely used on its own, but is sometimes combined with other murder defenses to strengthen a defendant’s argument. 

A report from the Williams Institute found that the defense has appeared in public court cases in about half of the states in the U.S. New Hampshire was not one of those identified. Advocates for banning the use of the defense say that the possibility of it spreads a negative message.

“These defenses are based in irrational fears and prejudice toward LGBTQ people, and they imply that violence against LGBTQ people is acceptable or understandable under certain conditions,” the LGBT Movement Advancement Project argues in a statement on its website.

New Hampshire has now joined 15 other states and the District of Columbia in banning the defense; most of which are in the Northeast or West Coast, according to data compiled by the Movement Advancement Project.

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The new law takes effect Jan. 1, 2024.

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