DeSeno: NJ’s New “Gay Panic Defense” Law Made Illegal What Was Already Illegal

By Tommy DeSeno

Former Governor Jim McGreevey once held the heavyweight championship belt for passing the silliest New Jersey law in history.

McGreevey once signed a law so silly you’ll laugh while reading it:  His law said no gun can be sold in New Jersey unless the gun itself can recognize its owner and refuse to fire unless the owner is holding it. The law also said it wouldn’t take effect until someone invented a jealous gun possessing a sentient, conscious personality that could do that.

So, your New Jersey legislature and governor wasted your time and your money to pass a law no one can use.  Silly.

Envious of McGreevey holding the title of “silliest lawmaker,” Governor Murphy was heard to say: “Hold my White Claw.”  Governor Murphy just signed a law making it illegal to do something that was already illegal to do.  Hand over the belt, McGreevey.

The “Gay Panic Defense” is a serious subject.  In some states, a person on trial for murder can claim that they “panicked” because someone was making a homosexual advance toward them, which put them in such a state of rage (known in the law as passion) that they inadvertently killed the person.  It is not an attempt to get off free, but to have the jury find the lesser charge of manslaughter.  I have no qualm with a state taking steps to make that defense illegal.

Last week Governor Murphy signed a law that made the “gay panic defense” illegal to use in New Jersey courts.

What makes it so silly is that it was already illegal to use in New Jersey courts.

As the new law wound its way through the legislature, it was getting great press, which of course means Christian Fuscarino was behind it.  Fuscarino is the honcho of the LGBTQ advocacy group “Garden State Equality.”  He wanted this law passed.

New Jersey politicians, never missing a virtue signaling chance to point to themselves and yell, “I’m not homophobic! I love gays! Look at me!” will accept anything Fuscarino says. That means they can be easily misled by him.

New Jersey media, never missing a virtue signaling chance to point to themselves and yell, “I’m not homophobic! I love gays! Look at me!” will accept anything Fuscarino says.That means they can be easily misled by him.

I’m all for being an LGBTQ ally and have been for years, long before Democrats decided it was good for votes and joined me.  But there’s no reason to lose all sense of reason in the effort.  We don’t need to signal that virtue with wasteful projects just to prove ourselves as allies.

It’s not the subject of the new law that is the bother.  It being duplicative of existing law is somewhat bothersome for its wastefulness.  The real bother is this:  The legislature and the governor, with the help of a lazy media, made New Jerseycourts look like a bunch of heartless, gay-hating bigots, when they were not.  That, of course, was the goal of Fuscarino, whose raison d’etre is to prove everyone who isn’t him is homophobic.  That sort of thing raises money for his group, which goes back to Democrat campaigns.

The day the law was signed last week, you’d have thought that Murphy and the legislature stopped a virtual holocaust of gay panic defenses in New Jersey.

Here was Murphy’s statement:

“Gay and trans panic defenses are rooted in homophobia and abhorrent excuses that should never be used to justify violence against vulnerable populations.” “Defendants have successfully argued that gay or trans panic constitutes heat of passion provocation in order to reduce charges of murder to manslaughter.”

Here was the bill sponsor in the Senate, Vin Gopal:

“Members of the LGBTQ community deserve protection from bigotry and hate – and the so-called ‘gay panic’ or ‘trans panic’ defense has no place in our courts.”

Here was bill sponsor in the Assembly, Joann Downey:

“This new[law] is a major step forward in addressing discrimination in our court system…”

Here was Christian Fuscarino from Garden State Equality:

“Make no mistake, the ‘panic’ defense is flat-out discriminatory legal malpractice, and no one should ever be excused from murder because their victim is gay or transgender.”

The trusting public bought that this was happening in New Jersey courts, hook, line and sinker.  Here is a sampling of comments from media Facebook pages about the “gay panic defense.” Keep track of what most have in common:

Sad that this should even need to be a law. 

It’s a shame that there actually has to be a law about it. Should never have been a defense.

Wait, some people actually tried to use that as a defense???

Thought it was already not a thing. Jesus Jersey. Hurry up a little

Can’t believe they were ever ABLE to use that defense….ridiculous

I bet those people who are gay panic are evangelical Christian, Muslim and all religion and god business. 

Had no clue this was even a thing. A defense of that sort sounds absurd to begin with.

Wtf. How was this even on the books?

Wow. I didn’t even know this was a thing.

How did a defense like that come to be in the first place? Who thought it would be ok to say that, not only in public, but in court? Horrifying.

 It’s a disgrace that our lawmakers would put such a defense in place to begin with. It’s good that it’s ending.

I can’t believe that’s still on the books! 

That’s a freakin thing?!?! Insane

The sad part is that this was never a “freakin thing” in NJ.What these comments all have in common is people’s shock that they had never heard of it before.

Here’s the truth:  In 200 years of New Jersey jurisprudence, no “panic” defense to murder of any kind has ever been recognized under our common law, and case law going back decades affirms that.

Nor is it allowed in our statutory law.  In fact, our law and our jury charges (the law that is read to juries at trial) state clearly “mere words” is never a defense to murder.

Under our law, you can’t use ANY violence over words, even a slap, no matter how upset you are that the person making a pass at you is gay, straight, a Martian or Snookie.

A search of West Reporters (the official depository of New Jersey laws) comes up with zero results when you search “gay panic defense.”  It’s not in any statute or case law. It’s not in the jury charges.  That’s because it has never been recognized in New Jersey. Nor could it be.

I reached out to those responsible for the new law to see if they can tell me of any case where a jury was instructed to consider the gay panic defense in New Jersey.

Governor Phil Transparency and Assemblywoman Joann Transparency decided to ignore my media request for comment.

Senator Gopal directed me to a case from 1984.  I assume he didn’t read it. While the victim’s sexuality was mentioned, no “gay panic” defense went to the jury.  The defendant instead asked the jury to consider his epileptic and convulsive medical conditions that caused him to panic during a fight.

Garden State Equality (props for an immediate response) brought up a 2011 case. I’m assuming they didn’t read about it. The trial judge ruled that the gay panic defense could NOT be used,then the Appellate Court ruled that the gay panic defense could NOT be used. The case is contrary to GSE’s position.

When asked if it’s true that the gay panic defense was never considered by any New Jersey jury, the Garden State Equality representative saidthat’s “probably true.”  The question is then, did GSE tell Murphy, Gopal and Downey that it was never used when they were pushing this law like it was an emergency?  Did they tell the Press who reported on it?

Turns out New Jersey media doesn’t care anyway.  I had a brief online conversation with Amanda Hoover of NJ.com who wrote many columns about it.  I pointed out to her that considering all the people commenting now believe that the gay panic defense was used in NJ (see above), and that’s factually incorrect, she should amend her column.  Her response? “No need for a correction.”  So, when your column is making people believe an inaccuracy there is no need for a correction?  Good grief.  No wonder people don’t trust media.

So tell Governor Murphy when he says “Defendants have successfully argued” the gay panic defense, that they haven’t.  Tell Senator Gopal when he says “the gay panic defense has no place in our courts” that it never has.  Tell Assemblywoman Downey when she says this law “addresses discrimination in our courts” that there was no such discrimination taking place.  Tell Christian Fuscarino when he says the gay panic defense “should never be used” that it never has been used.

Instead of wasting time virtue signaling with laws that help no one, it’s not too much to ask that our state government instead work for all people to get rid of what I call New Jersey’s axis of evil: Highest in the nation property tax, highest in the nation auto insurance, and the TV show the Real Housewives of New Jersey.

All three of those things ruin New Jersey’s reputation nationwide; a reputation Murphy, Gopal and Downey are supposed to protect.  Instead, they brutalized our reputation by allowing people to think our righteous court system is run by a bunch of homophobic bigots who would allow such a defense.  They never did.  You three and Amanda Hoover ought to think about a joint press release restoring our court’s reputation.

But I know the typical response to this column.  People will simply point at me and yell, “HOMOPHOBE!!!”  Unfortunately, in today’s political climate, that unmeasured response will carry the day.

Tommy De Seno is a lawyer, political writer, and currently resides in the Smithsonian as the last conservative from Asbury Park.

Posted: January 27th, 2020 | Author: Art Gallagher | Filed under: Garden State Equality, New Jersey, Opinion, Tommy DeSeno | Tags: Garden State Equality, Gay Panic Defense, Governor Phil Murphy, Joann Downey, New Jersey, Opinion, Senator Vin Gopal, Tom DeSeno, Tommy DeSeno | 6 Comments »

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