By: Ty Hyderally, Esq. and Francine Foner, Esq.

Legislation designed to prevent legal strategies which discriminate against LGBTQ murder victims recently passed the Assembly by a unanimous vote (74-0) and is currently awaiting consideration by the Senate. Bill A-1796 would amend New Jersey’s criminal homicide statute N.J.S.2C:11-4 to prohibit use of the “gay panic” defense to reduce a charge of murder to manslaughter.  Under that statute, a murder charge can be reduced to manslaughter if it is shown that the murder was “committed in the heat of passion resulting from a reasonable provocation.” What has been referred to as the “gay panic” defense is a legal strategy that contends that the affectional or sexual orientation or gender identity or expression of the victim constitutes “reasonable provocation” warranting a reduction in a charge of murder to manslaughter.

To accomplish its ends, the new law would amend the current law to add: “[f]or purposes of determining the heat of passion….a provocation is not objectively reasonable if it is based on the discovery of, knowledge about, or potential disclosure of the homicide victim’s actual or perceived gender identity or expression, or affectional or sexual orientation, including under circumstances  in which the victim made an unwanted, non-forcible romantic or sexual advance toward the actor, or if the victim and actor dated or had a romantic or sexual relationship.”

Passage of this law would follow the trend of several other states to prohibit what is widely viewed as a blatantly discriminatory contention  –  that affectional or sexual orientation, or gender identity or expression of a murder victim provides a reasonable provocation for committing murder in the heat of passion. As the statement accompanying the bill observes: “The bill is intended to prevent a defendant from seeking the reduction of a murder charge to a charge of manslaughter committed in the heat of passion, allegedly provoked by the discovery of, knowledge about, or  potential disclosure of the homicide victim’s actual or perceived  gender identity or expression, or affectional or sexual orientation.”

The bill awaits consideration by the Senate Judiciary Committee, where it has been awaiting action since its initial introduction to that committee on May 31, 2018. Hopefully, the Senate will take up the measure in the near future, so that the Governor can sign the bill into law.

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