New Jersey bans gay ‘panic’ defense in murder cases

Another new law that supports efforts to make the state more LGBTQ friendly

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The gay and trans "panic" defense legal strategy is now banned in New Jersey.
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The gay and trans "panic" defense legal strategy is now banned in New Jersey.
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The “panic” defense is a legal strategy, primarily used in murder cases, that asks a jury to blame a victim’s sexual orientation or gender identity for the defendant’s violence against them.

Now New Jersey has become the 9th state to outlaw this legal strategy, joining a growing consenus that the “panic” defense is discriminatory. On Jan. 21, Gov. Phil Murphy signed legislation to ban the gay and trans “panic” defense.

In 2019, five states outlawed the “panic” defense: Maine, New York, Hawaii, Nevada, and Connecticut. California banned the practice in 2014, followed by Illinois in 2017, and Rhode Island in 2018.

When the “panic” defense is employed, perpetrators claim that their victims’ sexual orientation or gender identity not only explains but also excuses their loss of self-control and subsequent assault. The new law would prevent a murder charge in such a case from being reduced or a defendant from being acquitted.

Gay and trans “panic” defenses have been used to acquit dozens of murderers. In New Jersey, the defense has been used at least once unsuccessfully.

Even in cases where juries are instructed not to listen to gay and trans “panic” defenses, the implicit homophobic or transphobic bias of hearing the defense at all can still influence the jury’s decision.

Garden State Equality is New Jersey’s statewide advocacy and education organization for the Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) community.

“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,” said Christian Fuscarino, executive director for Garden State Equality.

“As hate crimes against LGBTQ New Jerseyans continue to rise, and trans people are murdered across the nation, it’s more imperative than ever that we ensure our criminal justice system protects LGBTQ people equally — full stop.”

In 2019, at least 30 transgender Americans were reported killed. The FBI reported that hate crimes in New Jersey increased for the third consecutive year, with LGBTQ people making up a disproportionate number of victims.

La’Nae Grant is a transgender advocate from East Orange.

“Transgender women of color are victims to murder, violence, and harassment every day of our lives simply for living authentically as ourselves,” Grant said.

“We deserve to live with dignity and safety in our communities,” Grant said. “Knowing that the ‘panic’ defense is banned in New Jersey is another victory and moment of empowerment for black trans women like myself, but there’s still more work to do for our community.”

Fuscarino thanked the governor for signing the ban into law, noting that the new ban sends an unequivocal message that New Jersey fully values the lives and the dignity of LGBTQ people in the state.

In November, Gov. Murphy and Attorney General Gurbir S. Grewal announced policy changes for law enforcement to protect LGBTQ New Jerseyans following the Transgender Equality Task Force’s final report and recommendations. In January, New Jersey made adoption access easier for prospective LGBT parents.

As part of its plans for New Jersey’s upcoming legislative session, Garden State Equality will be advocating for a slew of laws to improve the quality of life for LGBTQ people in the state.

Advocacy will include making HIV-prevention drugs like PrEP/PEP available over-the-counter without a prescription.

Other initiatives include securing funding for LGBTQ youth homelessness, passing a bill of rights for LGBTQ older adults, and implementing policy recommendations from the NJ Transgender Equality Task Force.

As part of its federal agenda, Garden State Equality is working with its partners in the U.S. Congress to advocate for a nationwide ban on the “panic” defense.

Growing the Garden State

New Jersey has been working to make the Garden State a fruitful place for the LGBTQ community to grow.

Earlier in January, Gov. Murphy signed new legislation that will expand adoption access for LGBTQ parents.

There will now be fewer hurdles to adoption for LGBT couples.

Prospective LGBTQ parents can now bypass the lengthy and expensive adoption process. The legislation covers married or civil-union gay and lesbian couples who have used donor genetic material to achieve a pregnancy.

The new law exempts qualifying parties from having to obtain a home study, background checks, or an appearance in court for a hearing. It will also make applying for government or legal benefits for their children easier.

“When I went through the process of adopting my non-biological child a few years ago, it was a costly and legal nightmare [of] background checks, attorney fees, judicial hearings, home visits,” said Alisha De Lorenzo, interim deputy director of Garden State Equality. “The bills were never-ending.”

The new law streamlines the process for married or civil-union couples to obtain a confirmation of the parentage of a non-biological parent that makes their parentage recognized by all states and countries that might question it.

Non-biological parents include any non-genetic spouse in a marriage or civil union, whether same sex or different sex, including couples where one spouse is transgender.

Currently, in New Jersey, you are a legal parent only if you gestate the child, donate genetic material, or obtain a judicial order, such as an adoption decree or parentage order.

To protect non-biological parents’ legal parentage if they travel or move, it’s mandatory under the U.S. Constitution that non-biological parents obtain a judicial order confirming their parentage.

To obtain a “confirmatory” adoption decree, a non-biological parent must spend time, money, and effort on background checks, attorney fees, and a judicial hearing.

It’s not yet clear whether this process will be easily accessible by self-represented couples. However, the elimination of background checks and court appearances will lower legal fees if the couple decides to hire an attorney.

Under the new, streamlined process, the Family Division of the NJ Superior Court will issue a signed judgment naming both parties as the legal parents upon receipt of proof of three things.

First, the couple must provide an original marriage certificate, civil union certificate, or proof of comparable marital-type relationship from another jurisdiction.

Second, the couple must provide to the court an original birth certificate listing both parties as parents. This part was made easier by the new law mandating that the adopting parent be listed on the birth certificate.

Last, the court requires the couple to submit a sworn declaration by the parents explaining the circumstances of the child’s conception to identify whether there may be any persons with a claim to parentage of the child who must consent to the adoption.

The court may order a hearing to ascertain whether there are additional persons who must be provided notice of, or who must consent to, the adoption if it appears from the paperwork and the evidence that proper notice or consent have not been provided.

For updates on this and other stories, check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Dan Israel can be reached at disrael@hudsonreporter.com.