House Passes Ban on the LGBTQ+ Panic Defense

The House passed a ban on the so-called LGBTQ+ “panic” defense by a vote of 27-10-1-3, with three Republican Representatives (Michael Smith, Mike Ramone, and Kevin Hensley) voting yes, one not voting (Jeff Spiegelman) and one absent (Jeff Hilovsky). All Democrats voting yes except Keri Evelyn Harris and Rae Moore, who were absent. House Bill 142S is out of committee in the Senate already, but not on the Agenda today.

The LGBTQ+ panic defense is a legal strategy asking a jury to find that a victim’s actual or perceived sexual orientation, gender identity, or gender expression is to blame for a defendant’s violent act perpetrated upon an LGBTQ+ individual, up to and including murder.

This defense was put forth in the Matthew Shepard case in 1998 and in the “Jenny Jones Show” “secret crush” case in 1995. In 2018, in Texas, James Miller stabbed to death his neighbor Daniel Spencer after Mr. Spencer allegedly made a pass at him in his home. For that murder, Mr. Miller received a sentence of just six months in prison and ten years of probation.

These are only three examples of the many times this defense has been used to justify targeting a member of the LGBTQ+ community or someone perceived to be a member of the LGBTQ+ community. The defense has been used since at least the 1800s in America and continues to be put forth today. The defense has been put forth multiple times in Delaware.

In 2013, the American Bar Association unanimously passed a resolution urging the federal government and state governments to ban the defense. Since 2014, sixteen states and D.C. have banned done so—including our neighboring states of Maryland and New Jersey. In addition, four other states are currently considering such legislation.

This is the first significant piece of LGBTQ+ legislation to be introduced in the Delaware General Assembly since five years ago, when “conversion therapy” was banned for LGBTQ+ minors. One of the many reasons I ran against the 12-year incumbent I unseated in 2020 was because of his lack of support for that legislation and for the LGBTQ+ community and members of other historically disenfranchised communities in Delaware.

HOUSE BILL 142S– PRECLUDING THE LGBTQ PANIC DEFENSE	Currrent Status – House passed 27-10-1-3. Out of Committee in the Senate 6/21/23
House Sponsors – Morrison, Longhurst, Baumbach, Heffernan, Griffith, Williams, Neal, Harris, Lynn, Lambert, Phillips, Romer, Johnson // Smith	Senate Sponsors – McBride, Townsend, Lockman, Pinkney, Sokola, Gay, Sturgeon, Huxtable, Hansen
House Yes Votes – Baumbach Bolden Bush Carson Chukwuocha Cooke Dorsey-Walker Griffith Heffernan Johnson Lambert Longhurst Lynn Matthews Minor-Brown Morrison Neal Osienski Parker-Selby Phillips Romer Schwartzkopf Williams Wilson-Anton // Hensley Ramone Smith	Senate Yes Votes –
House No Votes – Briggs King Collins Dukes Gray Morris Postles Short Shupe Vanderwende Yearick	Senate No Votes –
House Absents or Not Voting – (Not Voting) Spiegelman (Absent) Harris, Hilovsky, Moore	Senate Absent or Not Voting –

Sections 1 and 3 of this bill move the definitions for gender identity and sexual orientation currently in the hate crimes statute to the general definitions section of the Criminal Code to maintain standard definitions of these terms throughout the Criminal Code.

Section 2 of this bill provides that in any prosecution or sentencing for an offense:

• a defendant is not justified in using force against another based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth;
• for the purposes of determining whether there is a reasonable explanation or excuse for the existence of extreme emotional disturbance or other asserted mitigating factor or circumstance, such explanation or excuse is not reasonable if it is based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth; and
• a defendant does not suffer from a mental illness, mental defect, mental disorder, serious mental disorder, psychiatric disorder, or other impairment affecting or impacting the defendant’s mental state relating to any questions of intent, knowledge, capacity to appreciate the wrongfulness of the defendant’s conduct, disturbance of the defendant’s thinking, feeling or behavior, culpability, willpower to choose whether to do or refrain from doing an act, or ability to distinguish right from wrong, based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth.