Last week, Colorado became the 11th state in the country to disallow what’s known as the “gay or transgender panic defense” in criminal proceedings.
Gov. Jared Polis signed SB20-221 into law July 13, which bans the defense tactic tied specifically to a victim’s sexual orientation or gender identity unless those factors can be proven relevant to the case — a move largely lauded across the state.
“[The law has] created one of the most progressive statutes in the nation by not allowing a victim or witness’ sexual orientation or gender identity be introduced as evidence without a judge’s approval,” explained Michael Teague, director of communications of the Colorado District Attorneys’ Council.
Teague’s colleague, Amanda Gall — a sexual assault resource prosecutor with the council — was instrumental in helping legislators craft the bill, he continued.
Gall described the gay or transgender defense in an interview with the Aspen Daily News as a sort of offshoot of the state’s “heat of passion” statute, sometimes invoked in second-degree murder cases.
“Heated passion is this idea that you’re so enraged or provoked by something that you lost control of your actions. It doesn’t entirely excuse your conduct, but it lessens [the implications],” she said.
“You walk in and find your spouse in bed with another person,” she offered as way of example.
That line of thinking has been permissible to apply specifically to circumstances in which a victim of a crime is also a member of the LGBTQ community.
“I went on a date with a woman; I discovered she was a transgendered woman and acted in violence. That should lower my culpability, somehow,” Gall continued in her examples.
One of the most prevalent cases showcasing the gay or transgender panic defense was that of Matthew Shepard in 1999. In that now infamous tragedy, the 21-year-old University of Wyoming student died in a Fort Collins hospital six days after being beaten, tortured and left to die near Laramie, Wyoming in October of 1998.
Both defendants in that case were convicted of first-degree murder and sentenced to two consecutive life sentences — but before the guilty verdict, one of the defendants famously claimed that the intended robbery escalated when Shepard allegedly made a sexual advance toward him.
“In his case, it was sort of the traditional panic defense, where someone claims that a gay person or a member of the LGBT community, that there was a sexual advance toward them that it caused such panic that it cased them to act insane,” Gall said.
That defense on its own will no longer stand as relevant nor permissible in Colorado courts. If a defendant does want a judge to consider a victim’s sexual orientation or gender identity, that party will have to pursue a special protective hearing in order to make that case.
“Listen, you can’t go into a courtroom in 2020 and make an argument that is based not on someone’s conduct, not on their words or actions against you, but based on who they love. We’re just not going to allow that,” Gall said.
She’s seen it weaponized firsthand in her own career, she added, recounting a homicide case she prosecuted.
“The defendant was claiming that he feared sexual assault or had been sexually assaulted, but there was no evidence of that. And I was like, ‘The fact that the murder victim — and he’s not here to speak for himself — was gay means nothing,’” she said. “Any time defendants are using any of these defenses, what they’re really saying to a jury is, ‘You should agree with me that gay people are people to be feared or disgusted by or explosively angry at in really very normal interactions, and that should excuse my behavior somehow. It’s just absolutely inappropriate in a courtroom, where things should be decided by facts and law.”
The Pitkin County District Court has not had to oversee anything as dramatic as a homicide in which a victim’s sexual orientation or gender identity has been made a part of the defense in recent memory. However, when a famous internet personality commanding more than 20 million followers on Instagram was arrested in December of 2018, the issue became a local one.
Cameron Dallas, then 24, was arrested and charged with felony assault. Although his Colorado Springs-based attorney Pat Mika did not explicitly cite the panic defense for his client’s actions, Dallas did tell Aspen police that he lost his temper and struck the then-34-year-old victim — breaking his jaw and fracturing his nose — after perceiving the victim as having made sexual advances toward the actor and singer’s male friend.
Indeed, Dallas — now with more than 15.5 million Twitter followers — attested to as much in public record in a Dec. 31, 2018 tweet, according to reporting from the Aspen Times.
“Unfortunately sometimes in life you find yourself in a situation where you have to protect yourself and the people you care about,” he tweeted.
Ultimately, a civil suit followed, and Dallas entered into a settlement agreement with the victim.
Fortunately, that case was an exception, not the rule, to what Ryan Kalamaya, of Aspen-based law firm Kalamaya Goscha, described as Pitkin County’s otherwise progressive culture toward LGBTQ causes.
“It’s good to hear that the legislature has caught up with what the general consensus in Pitkin County has been for a long time,” he said. “Pitkin County, we pride ourselves on being progressive or not judging people based on their sexual orientation. Gay Ski Week, the community has really embraced that. It’s good to see the Colorado legislature has caught up for that general view.”
Gay For Good’s Roaring Fork Chapter leader Steve Mills echoed that sentiment.
“It’s great that people in Colorado that are committing crimes can no longer use their homophobia as an excuse to allow atrocities to happen against the LGBTQ+ community,” Mills said. “Colorado has been progressive on so many LGBTQ+ issues, and this is just another example of that.”