Delaware has become the 17th state to ban the “gay and trans panic” defense.
Gov. John Carney signed a bill to this effect into law September 24. It states in part, “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.”
State Rep. Eric Morrison, a gay man, was chief sponsor of the bill in the House of Representatives, and Sen. Sarah McBride, a transgender woman, was primary sponsor in the Senate. Delaware’s other LGBTQ+ legislators, Reps. Marie Pinkney, DeShanna Neal, and Kerri Evelyn Harris, were involved in the effort as well, as was Equality Delaware.
Much of the work to pass the bill centered on educating legislators, Morrison tells The Advocate.“Many of them were absolutely shocked that this existed,” he says. “Once you educated them about that, they said this is outrageous.”
The panic defense seeks to justify a defendant’s action on the basis that the defendant lashed out due to being deeply upset about nonforcible sexual advances from or sexual contact with an LGBTQ+ person. It hasn’t been used a lot in Delaware, but Morrison says he knows of at least five instances. It’s hard to track because it’s usually used as a secondary defense in conjunction with a plea of self-defense or insanity, he says.
“Gay and trans panic defenses are rooted in antiquated ideas that being LGBTQ is a mental illness, and rely on the assumption that it is reasonable for a perpetrator to react violently to discovering the victim’s sexual orientation or gender identity or to a romantic advance by an LGBTQ victim,” notes a 2021 report from the Williams Institute, a think tank on LGBTQ+ issues at the University of California, Los Angeles, School of Law. “Since the 1960s, the gay and trans panic defenses have appeared in publicly reported court opinions in approximately one-half of the states.”
The Delaware bill had widespread support in both chambers of the legislature, Morrison says, but a question arose in the House about why it didn’t address panic defenses involving other aspects of a victim’s identity, such as race or religion. But the panic defense is specifically an LGBTQ+ issue, he says, and he and others sought to keep the spotlight on LGBTQ+ people.
Another state that banned the defense recently was New Hampshire, where Gov. Chris Sununu signed that bill into law in August. In addition to the 17 states, the District of Columbia has banned it.
Ten years ago, the American Bar Association passed a resolution saying all states and the federal government should outlaw the defense. Legislation has been introduced at the federal level but has not advanced.
Delaware has been a leader in pro-LGBTQ+ legislation, having been an early adopter of marriage equality and civil rights protections for trans people. But this is the first pro-LGBTQ+ law it enacted since 2018, when it barred licensed professionals from subjecting minors to conversion therapy.