The Oregon Legislature will have the chance to outlaw a homophobic and transphobic legal defense strategy during the 2021 session.
Senate Bill 704 would ban the LGBTQ+ panic defense—also known as the gay panic defense or trans panic defense—from being used in Oregon courts. The panic defense is a legal strategy arguing that uses of force against an LGBTQ+ person are sometimes justified. The shock of learning about a person’s real or perceived queer or trans identity, the defense argues, could temporarily diminish someone’s capacity to make rational decisions, or cause them to reasonably fear they are at risk of sexual assault from the LGBTQ+ person.
Sen. Katie Lieber, who represents parts of Washington County in the Oregon Senate, said SB 704 is necessary to ensure this defense is no longer permissible in Oregon’s criminal justice system.
“As an attorney and former prosecutor, I know firsthand how important statutory clarity is, especially when it comes to laws designated to protect communities at risk of discrimination and violence,” said Lieber, who is one of the bill’s eight lead sponsors, at a Senate Judiciary Committee public hearing on the bill held Thursday. “We need Senate Bill 704 to make it clear that defenses like these cannot be justified for murder.”
First documented in the 1950s and still used today, the LGBTQ+ panic defense has been outlawed by 12 states and Washington, D.C., beginning with a ban in California in 2014. The Washington State Legislature passed its own ban last year, naming it in memory of Nikki Kuhnhausen, a young trans woman who was murdered in Vancouver, Washinton in 2019.
“It works routinely,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association, in an interview with the Mercury last year about the panic defense. “It works because it plays on the worst stereotypes that LGBTQ+ people are somehow predatory.”
Lieber has taught criminal law at Portland Community College for 10 years, and said Thursday that each year, the LGBTQ+ panic defense appears in her textbook’s section on “adequate provocation.”
“The first time I taught out of this book, I was startled to see the gay panic defense appear,” she said. “That text book is in its 12th edition, and to this day, ten years later, gay panic still appears in its adequate provocation section. This is why Senate Bill 704 is so vitally important.”
For Dana Spears, who also testified in support of the bill Thursday, banning the LGBTQ+ panic is an urgent and personal issue. Spears’ sister, Aja Raquell Rhone-Spears, was killed in Portland last July. Rhone-Spears, 34 at the time of her death, was a Black trans woman.
“She was the favorite aunt amongst her nieces and nephews, and it was easy to see why—she was cool, stylish, adventurous, and was an entrepreneur,” Spears said Thursday. “But you could also find her close to home, helping her siblings take care of our father… it’s obvious family meant everything to Aja.”
Rhone-Spears was stabbed to death at a vigil for another homicide victim, and Spears said her sister was misgendered and deadnamed by police after her death—"a painfully disrespectful act.” No suspects have been charged yet in Rhone-Spears' death.
“When we finally get justice for Aja’s murder, we want to make sure we can show up to the courtroom and her memory is not insulted by someone attempting to use the panic defense for her death,” Spears told lawmakers at the committee hearing.
The Senate Judiciary Committee will need to vote to approve the bill before it receives a floor vote. There was no testimony against it at Thursday’s hearing, suggesting it has a strong chance of passing before the session ends in June.