Lawmakers to take up legislation that would eliminate ‘gay panic’ legal defense

By AMANDA PIRANI

New Hampshire Bulletin

Published: 06-21-2023 12:05 PM

House and Senate lawmakers this week will negotiate House Bill 315, which would eliminate what has been called the “gay panic defense.”

The bill was passed by the Senate earlier this month, but the House voted to send the bill to a committee of conference over concerns about legal precedents the bill might set. State senators and representatives will meet to resolve disagreements on Thursday, and then the bill will be voted upon by the full House on June 29.

“The gay panic defense” is a legal defense strategy that can be employed by a defendant who kills an LGBTQ+ person. Its application has not been uniform, but generally argues insanity or self defense for an individual who kills in response to discovering that another has a different sexual orientation or gender identity than was assumed.

New Hampshire and Massachusetts are the only New England states without a ban on the legal defense. Supporters of the bill argue there is no reason to leave the defense tactic viable.

“There should be no room for legal defense in New Hampshire that uses a person’s gender or sexual identity as a reason to excuse the actions of a person who has committed a crime against them,” said Rep. David Meuse, a Portsmouth Democrat, during a House session on June 15.

There have been multiple efforts to ban the practice over the last two years, but a bill doing so has yet to pass the state Legislature.

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“I think in the past, people just diminished the importance of it because it’s a defense that has not been used in New Hampshire,” said Manchester Democratic Rep. Allisandra Murray.

Last week, Windham Republican Rep. Bob Lynn, a former state Supreme Court justice, expressed concerns to the House that the bill, as it stands, could unintentionally eliminate the use of provocation where there is a preexisting romantic or sexual relationship.

“It would change 500 years of law, and I don’t think that that’s what anybody intended,” he said. “But that would be what the result of this would be.”

Provocation is an idea in law that a series of events preceding a criminal act could cause a reasonable person to lose self-control, and can be used to reduce the charges against them.

Lynn brought up the example of infidelity, which, if a provocation defense is successful, would lower a charge from first-degree murder to manslaughter.

Both Murray and the bill’s primary sponsor, Keene Democratic Rep. Shaun Filiault, expressed doubt regarding Lynn’s argument.

“While I don’t agree with his interpretation of the bill, statutory interpretation can be complex,” said Filiault.

Cornerstone Action, a conservative think tank, publicly opposed the bill over different legal concerns: the language regarding unwanted sexual advances.

“It is evident that the impetus behind the bill is to erode the safety and dignity of women, and to promote sexual harassment,” the organization stated in a blog post this month.

Murray said that perspective is not an accurate reflection of the bill’s spirit or language.

“The bill does specify non-forcible,” said Murray. “… Cornerstone’s telling people that this would negate people’s ability to pursue assault charges, that is not the case at all.”

Advocates were frustrated by the unexpected vote for a committee of conference, which occurred after Lynn presented his concerns.

New Hampshire Youth Movement’s director of communications, JB Brackett, said the organization would like to see the bill passed as it has been amended by the Senate.

“We’re making a call to the committee of conference to make sure the ban isn’t weakened,” they said. “We don’t want the impact of the bill to be watered down.”

The Senate version of the bill adds language that explicitly prohibits the use of the defense, even in cases where unwanted (but not forcible) advances were made and in cases of a pre-existing romantic relationship.

Murray argued that for the bill to have its intended effect, the language is necessary.

“From my perspective, the language that they want to take out will weaken the bill and weaken the banning of this defense,” they said.

They added that similar bills have passed in other states. According to Filiault, California, Connecticut, Hawaii, Maine, Nevada, New Jersey, Pennsylvania, Rhode Island, and Washington have similar statutes.

Brackett suggested the uphill battle the bill has faced is part of a larger issue within the state when it comes to legislation related to LGBTQ+ rights, largely due to party polarization.

“Unfortunately, opposite to what one might expect, as time goes on, more anti-LGBTQ+ bills get brought up to the Legislature,” they said. “It’s kind of a constant challenge.”

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