The “gay panic” or “trans panic” defense is when people accused of assault or murder say they acted in a state of temporary insanity, either because they learned of the victim’s sexual orientation or gender identity, or in reponse to a sexual advance.
The legal strategy has been deployed in dozens of cases across the country to sway a jury or lessen a defendant’s charges. That includes in New Jersey, where Francisco Gonzalez Fuentes’ boyfriend Pedro Garcia and another man murdered him after Fuentes outed Garcia at a party. Garcia, who was convicted of the gruesome 2011 murder in Bergen County, claimed he was “provoked” when Fuentes tried to sexually assault him.
Under fire from the LGBT Bar Association and other organizations nationwide, who say it implies that the lives of gay and transgenger people are worth less than others, the defense has been curtailed in eight states.
A bill approved unanimously by the state Assembly on Monday would make New Jersey the ninth. The measure, which still must clear the Senate and be signed by Gov. Phil Murphy, would bar the defense in murder cases.
“No one should ever be excused from murder because their victim is gay or transgender,” Christian Fuscarino, executive director for Garden State Equality, said in a statement. “New Jersey must send an unequivocal message that we fully value the lives and dignity of LGBTQ people.”
Activists say now is a critical time for the legislation to move forward. At least 22 transgender and gender non-conforming people have been killed in the United States this year, according to the Human Rights Campaign.
In New Jersey, reported hate crimes have increased in each of the past three years. Though Gallup estimates that lesbian, gay, bisexual and transgender people make up only 4.5% of the U.S. population, LGBT people make up about 16% of federally-reported hate crime victims, according to the FBI.
Activists also want to build on recent policy gains in New Jersey. After a first-of-its-kind statewide task force on transgender equality released a list of recommendations last week, Attorney General Gurbir Grewal promptly issued a new directive governing police interactions with transgender individuals.
The directive instructs police not to stop people over their gender identity, to address individuals using their chosen names and pronouns, and to perform “any actions that turn on gender” in line with the person’s gender identity, among other provisions.
Grewal also announced an anti-discrimination public awareness campaign and a new Juvenile Justice Commission policy on dealing with LGBT children.
The “gay panic” or “trans panic” defense is not always successful, and according to The New York Times, it has been used less frequently over time as attitudes toward gay and transgender people have shifted.
It was unsuccessfully used on appeal in the Bergen County murder case.
But the defense is not dead. According to the LGBT Bar Association, it was most recently used in April 2018 to try to reduce a murder charge to a lesser crime.
Jon Oliveira of Garden State Equality said it’s not enough for judges to instruct juries not to engage in bias if they hear a “gay panic” or “trans panic” defense.
“Even if that were dismissed by a judge, as human beings we understand that once that argument has been presented there’s an implicit bias that has definitely affected the jury,” he said.
California was the first state to curtail the legal strategy, in 2014. Since then, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii and New York have passed similar laws.