Colorado lawmakers hope the state will become the 11th to restrict use of the “gay panic” defense, which they claim creates excuses for those who perpetrate violence against gay and transgender persons.
According to co-sponsor Rep. Matt Soper, R-Delta, the bill doesn’t actually ban the defense. “You can always describe the victim’s behavior” and how the defendant interpreted it, and how it played on the defendant's mental state. What the defendant can’t do is ask to be relieved of legal liability based on the victim’s sexual or gender identity, Soper said.
The bill still allows use of the gay panic defense if the defendant can prove its relevance.
The House Judiciary Committee this week passed House Bill 1307 on a 6-2 vote. It is now awaiting action from the full House.
According to the American Bar Association, the gay panic defense is a legal strategy that seeks to “partially or completely excuse crimes such as murder and assault on the grounds that the victim's sexual orientation or gender identity is to blame for the defendant's violent reaction.” The ABA in 2013 urged states to reject the gay panic defense.
A study by St. Edward’s University showed that at least 104 murder cases have used the defense between 1970 and 2019.
The most well-known case in Colorado involved the murder of Angie Zapata of Greeley. Zapata, a transgender woman, was murdered in 2008 by Allen Andrade after a sexual encounter. He tried to use the defense but was instead convicted of first-degree murder and a hate crime, and was sentenced to life in prison.
One of the killers of Matthew Shepard, the University of Wyoming student who was beaten by two men but later died in a Fort Collins hospital in 1998, also attempted to use the “gay panic” defense. The two men received two consecutive life sentences each.
In the House, HB 1307 is co-sponsored by Rep. Leslie Herod, D-Denver. In the Senate, the bill will be carried by Sens. Jack Tate, R-Centennial, and Jeff Bridges, D-Greenwood Village.
Herod told the House Judiciary Committee that Shepard’s murder had a lasting impact on her, as she was coming of age at the time.
The gay panic defense has been used successfully in Colorado, Herod claimed.
“It’s a sham defense,” Soper told the committee. Panic defenses are used to justify violent acts, from assault to murder. Defendants aren’t allowed to use race or other characteristics to excuse violent acts, he said.
The bill is backed by the Colorado District Attorneys’ Council, represented by Boulder District Attorney Michael Dougherty, who said hate crimes are on the rise in Colorado. He pointed to the case of Clinton Erickson, who was convicted in 1992 of first degree murder, theft, and first degree aggravated motor vehicle theft. Erickson was given a sentence of life without the possibility of parole and is in the state prison in Sterling.
In an appeal turned down by the Colorado Court of Appeals in 1994, Erickson’s lawyer contended the the trial court erred in not allowing testimony that the victim was bisexual, which the defendant heard through a rumor.
“Sub in any other word,” Doughtery said: “white, heterosexual, African-American, Republican, socialist, poor, rich or any other word, and it would irrelevant and not allowed,” yet the defendant wanted that rumor introduced as evidence. The defense also claimed that the rumor that the victim was bisexual was “probitive and relevant [and] that he may have attempted a homosexual rape of my client.”
Banning the defense is “the right position for us to take,” not one based on “cruel assumptions and stereotypes.”
Laura McWatters of Fort Collins facilitates transgender support groups in Fort Collins. “Our gender identity or sexual orientation is not to blame for someone's loss of control or violence,” she said. Those who murdered Zapata and Shepherd “were allowed by the courts to use our very existence as part of their legal defense.”
No one testified against the bill, although Rep. Hugh McKean, R-Loveland, raised concerns that the bill might not be tightly crafted enough, and that voices who might be opposed have not been heard. "We have not had the fullness of the conversation about changing some of our law."
He pointed out that members of the Colorado Defense Bar and public defenders did not testify. Soper replied that those public defenders know how to mount a serious defense "and they aren't here...they didn't show up to be at the table, and chose not to be here."
Soper said he wasn't implying anything by their absence, but if they were serious about amending or stopping the bill, they haven't taken any steps to do so. Herod added that the defense bar has been part of the conversation since June, but "they made the determination not to come today," and are not taking a position on the bill.
"Our doors are open," she said.