LGBTQ ‘panic’ defense could be banned in NM

An effort to ban people from raising a defense in court that they only acted violently because they were surprised about the gender, sex or sexuality of their victim cleared the Legislature last week. It was the very last committee amendment added to the crime package.

The “queer panic defense” is a strategy that asks a jury to find that a victim is to blame for a defendant’s violent reaction, including murder, Sen. Jacob Candelaria (DTS-Albuquerque) told the Senate back in 2021, the last time he introduced a bill.

“This ‘defense,’ which is available in New Mexico, implies that LGBTQ lives are simply worthless,” he said on the Senate floor, “that my life and the life of my husband are worthless.”

Candelaria’s measure failed in 2021, but the crime package headed to the governor’s desk this year includes the elimination of such a defense, justification or excuse in a criminal proceeding.

Marshall Martinez, executive director of Equality New Mexico, said his group is super excited about the bill’s passage, and he is grateful that Candelaria was able to negotiate it into the crime package. 

Candelaria was joined in a push to get the ban included in the crime package by Sens. Elizabeth Stefanics (D-Cerrillos), Carrie Hamblen (D-Las Cruces) and Leo Jaramillo (D-Española), Martinez said.

Last year’s bill only included defenses related to the victim’s sexual orientation or “gender identity,” but the crime package also includes gender and gender expression. Martinez said the language in the bill was made more broad from previous versions of the proposal with help from public defenders, Candelaria and Sen. Katy Duhigg (D-Albuquerque).

That means that a defendant could not just claim ignorance about the difference between the victim’s gender identity (their self-perception) and gender expression (how they present their gender).

“By adding gender and gender expression, it captures all these pieces, and so you don’t have to rely on the defendant understanding or using language that fits solely into the gender identity box,” Martinez said.

Candelaria and Equality New Mexico have been trying to get the Legislature to ban the panic defense for about five years, Martinez said.

Barring any special session, Candelaria said he is resigning from the Senate. In his farewell address to the Senate early in the morning on Thursday, he thanked Sen. Joseph Cervantes (D-Las Cruces) for including the measure in the crime package.

Other state bans

The “queer panic defense” was first raised in a New Mexico court some time in the 1970s, Martinez said, and will be allowed either until the governor signs the crime package or the U.S. Supreme Court intervenes.

In 2013, the American Bar Association unanimously approved a resolution calling for an end for the use of this defense.

Other jurisdictions have issued similar bans, including in Washington D.C., California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey, Washington, Oregon, Virginia, Maryland, and Colorado, according to the National Conference of State Legislatures. They’ve also been introduced in 12 other states.

There fortunately isn’t one particular case in New Mexico to point to, Martinez said, but because the way the criminal justice system works, it is safe to assume that this defense is probably used in assault and battery cases “all the time.”

Even if the ban in New Mexico takes effect, he added, the defense could still be brought up in federal courts.