NJ Senate passes ban on LGBT-panic defense

On Dec. 16, the New Jersey State Senate unanimously passed legislation to ban the use of an LGBT-panic defense to get a reduced penalty for committing a homicide in the state. The vote was with 39-0 with one abstention.  The Garden State is now poised to become the ninth state in the nation to pass such legislation. 

Jon Oliveira, a spokesperson for Garden State Equality, said he was “ecstatic” with the vote. “Year after year, trans people are being murdered in the street,” Oliveira told PGN. “At least 30 trans people that we know of have been murdered this year alone [in America]. The LGBT-panic defense ban is a monumental step forward in demonstrating that New Jersey unequivocally respects the LGBTQ community.”

Christian Fuscarino, executive director for Garden State Equality, echoed those sentiments. “Make no mistake, the ‘panic’ defense is flat-out discriminatory legal malpractice, and no one should ever be excused from murder because their victim is gay or transgender,” Fuscarino said, in a press release. “As hate crimes against LGBTQ New Jerseyans continue to rise and trans people are murdered in the streets, it’s more imperative than ever that we ensure our criminal justice system protects LGBTQ people equally — full stop. When this ban becomes law, New Jersey will send an unequivocal message that we fully value the lives and dignity of LGBTQ people.”

The bill is headed to Gov. Phil Murphy’s desk for his signature. A spokesperson for Murphy said the governor doesn’t comment on pending legislation. But LGBT advocates say he’s expected to sign the legislation when it reaches his desk.

The legislation would prevent a defendant from trying to reduce a murder charge to a charge of manslaughter committed in the heat of passion because it was provoked by the victim’s actual or perceived LGBT status.

Under current law, a homicide that would otherwise be murder is reduced to manslaughter if the jury finds that the crime was committed “in the heat of passion resulting from a reasonable provocation.”

In New Jersey, murder is a crime of the first degree, punishable by a term of imprisonment ranging from 30 years to life. A provoked heat-of-passion manslaughter is a crime of the second degree punishable by 5-10 years imprisonment. There is no death penalty in New Jersey.

Assembly Bill 1796 was introduced into the Assembly on Jan. 9, 2018, and referred to the Assembly’s Judiciary Committee. After a public hearing, the six-member committee unanimously approved the bill on Nov. 18. On Nov. 25, the New Jersey General Assembly unanimously passed the legislation in a 72-0 vote, with eight abstentions.

On Dec. 12, in a 10-0 vote, the state Senate Judiciary Committee unanimously approved the legislation. Garden State Equality board member Thomas Prol testified during the committee’s public hearing. “It is time for New Jersey to get on the right side of history and join our sister states in prohibiting the gay and trans ‘panic’ defense,” Prol said. “This legally sanctioned discrimination only serves to legitimize and excuse violent, lethal behavior against the LGBTQ community.”

Gay and trans “panic” defenses have been used to acquit dozens of murderers of their crimes across the country. Even in instances where juries are instructed not to listen to such a defense, the implicit homophobic or transphobic bias of hearing the defense at all can still influence the jury’s decision, according to Garden State Equality’s press release.

New York, Hawaii, California, Rhode Island, Illinois, Maine, Nevada and Connecticut have enacted similar legislation.

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.