What is the “Panic Defense”? You ask, As explained in by the LGBT Bar Association at https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/ this defense to murder can be used in three ways: first, being propositioned by the victim/now dead person created a “panic” that basically made the murderer temporarily insane; next, being propositioned by the victim/now dead person was “provocative” enough to warrant murder as a response, although the proposition might not be considered harmful if it came from a heterosexual or cisgender person, and finally, the gender or sexual orientation of the victim/now dead person caused the individual to believe they were about to experience serious bodily harm.
So, let’s say that I, a woman, am enjoying a root beer (I don’t like beer – I know, I know – I don’t like coffee either for whatever that’s worth) at a local watering hole. I am standing, talking with some other folks when from behind my ass gets grabbed by a large, looming, individual.
Let’s further assume (incorrectly) that I find this behavior sexually attractive and the looming individual stumbles to the back seat of a car parked outside the watering hole with me. Let’s say I agree to intimate activity in that back seat and, during the course of this, the person discovers that I have 1) a double mastectomy from cancer, I had been using padded bras to give the appearance of breasts and/or 2) a colostomy bag as a result of removal of my rectum as a result of colorectal cancer. Finding my intimate anatomy to be different than what this person expects of a woman, this person murders me. Should the surprise finding of my surgical interventions give rise to an excuse for murdering me?
What if the looming individual finds that I, in all other ways a woman, have a penis or intersex genitalia which has not been surgically altered. Sometimes folks don’t have gender confirmation surgery due to cost, recovery time away from work and family, medical conditions making them a surgical risk, or they like their genitalia. This too could be a situation in which my intimate anatomy differs from that expected by the looming individual. So far as I know, no one has ever tried to argue that finding a colostomy bag incited a “panic” or made propositioning someone “provocative” such that it would excuse murder. Sadly, I understand it has been successfully argued that discovering a woman has a penis does excuse murder.
Let’s say instead that having my ass grabbed so shocks me that I turn and smash my root beer bottle into the side of this person’s head (more likely), killing this person. Was my behavior excusable? If the looming individual were a straight cisgender man then I can’t claim I acted in self-defense. If the looming individual were another woman or trans, then I could argue I feared serious bodily harm. What’s the difference here? Gender? The gender of the person propositioning me: if they are trans or the gender matches mine it’s legal for me to kill the person. If they are cisgender and their gender differs from mine, it is illegal. And if we’re going to distinguish in the law based upon gender, we need a reason substantially related to an important governmental objective in order for that law – here a legal defense to murder – to be upheld. (Yeah, that’s right; as we weren’t able to actually pass the Equal Rights Amendment gender discrimination gets a laxer standard than discrimination based upon other suspect classes like religion or race.) Someone, please, tell me what the important governmental objective is in allowing trans and same-gender ass-grabbers to get murdered without consequence when the death of cis-different-gender ass-grabbers is prosecuted as murder. Maybe if we can’t pass a statute clearly saying that the panic defense is not available in Washington, we should expand its scope to be gender-neutral: anybody that comes up behind me in a bar, grabs my ass, and dies from my root beer bottle smashing their head had it coming.
Personally, I was flabbergasted to find that just such a bill ending the legal use of the (nonsense) “panic defense” in Washington was introduced last legislative session and never left committee, HB 1687. What could easily be a demonstration of the legislature’s ability to still work together, I mean – let’s face it, limiting defenses to murder isn’t exactly one of the more controversial topics out there, still sits. When I asked Matt Landers, Commissioner of the newly created LGBTQ Commission why he explained that “Unfortunately, in the 2019 legislative session there was not enough understanding about the continuing use and harm of panic defenses. This year, the LGTBQ community has made it clear to legislators that this one of our topic priorities, and with the tragic case of Nikki Kuhnhausen, an alarming tactic that continues to be used against us in Washington State.” I am here to tell you that both murder and ass grabbing happen in Washington state. It’s an issue. And, it’s never a useless legislative act to show support for humanity by declaring that murder is wrong and won’t be tolerated no matter what your gender status.
This year is a short session with the last day to get bills out of committee scheduled for February 28. Let’s get HB 1687 out of committee and into statute. Don’t know who to contact? Use this interactive map to find the appropriate Senator and Representative for you. https://app.leg.wa.gov/districtfinder