Bill targets LGBTQ ‘panic’ defense

(The Center Square) – Lawmakers considered a measure this week targeting what’s known as the LGBTQ+ panic defense – where accused attackers claim that shock over a victim’s gender identity or sexual orientation should mitigate their actions.

House Bill 637, which passed through the Judiciary Committee on a party-line vote Wednesday, updates state law to clarify the defition of “serious provocation” as it relates to homicides and other violent crimes to say:

“The term does not include the discovery, knowledge or potential disclosure of a victim’s actual or perceived gender identity or expression or sexual orientation, including circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant or if the defendant and victim had a romantic or sexual relationship.”

“Across this country and in this Commonwealth, there is a pattern, practice, and disgusting regularity of folks being targeted for their actual or perceived sexual orientation, gender identity, and there’s a necessity to make sure that folks cannot use that perceived sexual orientation or gender identity as a defense for violence against our communities,” said Rep. Malcolm Kenyatta, D-Philadelphia, in support of the bill.

According to the bill’s sponsor – Rep. Ben Sanchez, D-Abington – the measure is intended to “remove a discriminatory criminal defense that does nothing more than blame the victim,” noting that similar laws have passed in 17 other states, including neighboring Delaware.

Currently, the criminal code includes within its definition of “serious provocation” the victim’s “actual or perceived gender identity or expression or sexual orientation.” The “serious provocation” defense often appears in homicide cases, though it has not been cited in this context before.

“What we’re doing is tightening up language to say, ‘No defense should be mounted to say that a victim deserved to be attacked because they were less than human,’” said Rep. Emily Kinkead, D-Bellevue, who has worked as a criminal defense attorney. “This is something that I don’t want to have as a tool in the toolbox.”

Rep. Paul Schemel, R-Waynesboro, expressed concern that removing any potential defenses for accused attackers could have “unintended consequences,” voting against the bill while stating that he didn’t have any opposition to its driving principle.

Others questioned whether the step is necessary since the defense is not used with any regularity.

“I certainly have faith in our judicial system, our juries, and our judges to discern if this is appropriate in any given situation,” said Committee Minority Chairman Rep. Rob Kauffman, R-Chambersburg, who added that the issue had never been brought to his attention when he served in the majority position.

According to a study cited by Sanchez, the defense has been used across the United States 104 times between 1970 and 2020. While those cases haven’t occurred in Pennsylvania, he said “even one would be too many.” Removing the language would be the only way to rule out the use of this defense in the future.

Less relevant than the defense’s uses, proponents of the bill emphasize that the wording of the law as it stands is dehumanizing.

“The real issue in this is that it’s an available defense that fundamentally sets up an argument that the victim of a crime was lacking in humanity such that it was justifiable that somebody would attack them because of the actual or perceived status as a member of the LGBTQIA+ community,” Kinkead said.