Written by FASPE Law Fellows: Shannon Joyce Prince and Carson Thomas

In June, New York joined six other states in banning gay-panic and trans-panic defenses.  These defenses allow a criminal defendant to claim that a violent act was a sudden emotional response to an unwanted sexual advance from a person of the same sex.  They descend from centuries-old common law "heat of passion," or provocation, defenses. In the mid-twentieth century, progressive legal thinkers called for penal codes to recognize the decreased culpability of defendants whose capacity was diminished by past mental and emotional trauma, including survivors of domestic violence and sexual assault.  This shifted the focus from a specific set of external circumstances that would cause a "reasonable person" to act violently---i.e., finding one's spouse committing adultery---to the mental and emotional capacity of the individual defendant. The elimination of the gay-panic and trans-panic defenses seems to stem from a laudable desire by state legislatures to ensure that LGBTQ persons are afforded the full protection of the law.  This article identifies some positive outcomes from the expansion of provocation defenses and questions whether the elimination of the gay-panic defense might lead to unintended consequences, including potential limits on the ability of women to claim self-defense against men who had previously abused them. Provocation defenses also raise difficult ethical questions for criminal law practitioners. Should a defense attorney rely on a gay-panic defense to acquit their client despite the fact that the defense is predicated on prejudice?  Do bans against gay-panic defenses prevent defendants from protecting themselves against inappropriate sexual advances simply because the advances were made by someone of the same sex? Where do the concepts of trans-panic and “rape by deception” intersect, and what ethical questions should guide us in navigating that space? In making charging and sentencing decisions, how much should a prosecutor consider a defendant's prior trauma?

Read the original article from The New Yorker.