Oregon is poised to join the ranks of states that explicitly bar accused murderers from arguing in court that they panicked after learning their victim was gay or transgender.
The House of Representatives on Thursday unanimously passed Senate Bill 704, which ensures that defendants accused of second-degree murder cannot successfully argue they were “under the influence of extreme emotional disturbance” when they killed a person after learning of their gender identity or sexual orientation. The bill now goes to Gov. Kate Brown for a signature.
“The passage of this bill will send a strong message that the perpetrator of a second-degree murder will not be able to excuse the crime simply based on who their victim is,” said state Rep. Karin Power, D-Milwaukie, who carried SB 704 on the House floor.
State Rep. Karin Power, D-Milwaukie, carried Senate Bill 704 on the House floor.
Phoebe Flanigan / OPB
The bill is part of a nationwide movement to stop what’s frequently shorthanded as the “gay/trans panic defense” or “LGBTQ+ panic defense.” With Brown’s signature, Oregon would join 13 other states and the District of Columbia in barring the use of such a tactic.
California was the first state to adopt a similar policy in 2014, according to The LGBT Bar. Washington passed a law last year, naming its bill after Nikki Kunnhausen, a 17-year-old transgender teen from Vancouver who prosecutors say was strangled to death by a man who became enraged after learning of her gender identity. At least eight other states are currently considering similar bills.
While advocates acknowledge there is little or no precedent for such a legal defense in Oregon courts, they say the bill is nonetheless important for the signal it sends.
“Passing legislation will make it clear in statute — and across Orgon — that violent acts are not justified because of a person’s sexual orientation or gender identity,” the group Basic Rights Oregon wrote in testimony supporting the bill.
Multnomah County Prosecutor Mike Schmidt’s office testified that federal statistics show hate crimes against people who identify as transgender have risen sharply since 2013. The Oregon Department of Justice says that the state’s response hotline for bias crimes has recorded 287 reports of crimes or incidents against LGBTQ people since January 2020. And the Human Rights Commission, which tracks killings of transgender and gender nonconforming people, identified 44 such incidents in 2020, the most since the commission began tracking in 2013.
“The ‘gay/trans panic’ defense has historically been used to justify harassment, assault and murder of LGBTQ community members,” the DOJ’s legislative director, Kimberly McCullough, wrote in submitted testimony. “In essence, this defense has been used to justify violent hate crimes. Senate Bill 704 officially proclaims that this abhorrent defense has no place in Oregon.”
While Oregon law allows criminal defendants to argue they were under the force of an “extreme emotional disturbance” in order to combat a charge of second-degree murder, SB 704 ensures that argument is not permissible if the claimed emotional disturbance was due to “the discovery of, knowledge about or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression or sexual orientation, including but not limited to circumstances in which the victim made a romantic or sexual advance that was unwanted but did not involve force toward the defendant.”
State Rep. Anna Williams, D-Hood River, said on the floor Thursday that formally blocking a “panic” defense in Oregon statute was overdue.
“From a legal standpoint, when the state tells you that the discovery of someone’s gender, whether actual or perceived, or their sexual orientation creates a diminished capacity ... the state is telling you that someone else’s life matters less because of who they love or how they express themselves,” Williams said. “I find that very offensive.”