Text of CO SB 221 (2020)

Second Regular Session Seventy-second General Assembly STATE OF COLORADO INTRODUCED LLS NO. 20-1324.01 Conrad Imel x2313 SENATE BILL 20-221 Senate Committees House Committees State, Veterans, & Military Affairs A BILL FOR AN ACT CONCERNING BANNING THE USE OF A PANIC DEFENSE UNLESS A PARTY 101 CAN SHOW ITS RELEVANCE TO THE COURT. 102 Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.) The bill states that generally evidence relating to the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant or if the defendant and victim are or have been involved in an intimate SENATE SPONSORSHIP Moreno and Tate, HOUSE SPONSORSHIP Titone and Soper, Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters or bold & italic numbers indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute. relationship, is irrelevant in a criminal case and does not constitute sudden heat of passion in a criminal case. The bill creates a protective hearing if a party claims that such evidence is relevant and wants to use it in a criminal case. Be it enacted by the General Assembly of the State of Colorado: 1 SECTION 1. Legislative declaration. The general assembly 2 hereby finds and declares that it is the right of every crime victim to be 3 protected from bias-motivated crimes, including crimes against lesbian, 4 gay, bisexual, transgender, and queer persons. The general assembly 5 further finds and declares that it is the right of every victim and witness 6 to be treated with respect and protected from unfair attack on their 7 character and privacy. So-called "gay panic" and "trans panic" defenses 8 seek to partially or completely excuse a defendant from full accountability 9 for the commission of a violent crime on the grounds that the sexual 10 orientation or gender identity or expression of the victim is sufficient in 11 itself to arouse the heat of passion in the defendant, or contribute to a 12 valid provocation or justification for the violent reaction of the defendant, 13 or cause the defendant to be temporarily insane. In other contexts, a 14 victim's or witness's gender identity or expression or sexual orientation is 15 used to attack their credibility and character and invade their privacy, 16 creating disincentives to testify and impediments to the search for truth 17 and justice. These tactics appeal to irrational fears and hatred of these 18 persons, undermining the legitimacy of criminal prosecutions and 19 resulting in unjustifiable acquittals or sentencing reductions due to bias, 20 fear, shock, or disgust rather than competent evidence. Continued use of 21 these anachronistic defenses and appeals to reinforce bias and 22 institutionalize prejudice at the expense of norms of self-control, 23 SB20-221 -2- tolerance, and compassion, which the law should encourage, and it is an 1 impediment to a just criminal justice system. Any suggestion of legally 2 sanctioned discrimination against a person's sexual orientation or gender 3 identity or expression must end. As the American Bar Association has 4 urged legislative action to curtail the availability and effectiveness of "gay 5 panic" and "trans panic" defenses, the general assembly brings forth this 6 legislation. 7 SECTION 2. In Colorado Revised Statutes, 16-8-101.5, amend 8 (2) as follows: 9 16-8-101.5. Insanity defined - offenses committed on and after 10 July 1, 1995 - definitions. (2) As used in subsection (1) of this section: 11 (a) "Diseased or defective in mind" does not refer to an 12 abnormality manifested only by repeated criminal or otherwise antisocial 13 conduct. EVIDENCE OF KNOWLEDGE OR AWARENESS OF THE VICTIM'S 14 ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, 15 OR SEXUAL ORIENTATION SHALL NOT CONSTITUTE INABILITY TO 16 DISTINGUISH RIGHT FROM WRONG. 17 (b) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE 18 SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). 19 (b) (c) "Mental disease or defect" includes only those severely 20 abnormal mental conditions that grossly and demonstrably impair a 21 person's perception or understanding of reality and that are not 22 attributable to the voluntary ingestion of alcohol or any other 23 psychoactive substance but does not include an abnormality manifested 24 only by repeated criminal or otherwise antisocial conduct. 25 (d) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN 26 SECTION 18-9-121 (5)(b). 27 SB20-221 -3- SECTION 3. In Colorado Revised Statutes, 18-1-704, amend 1 (3)(b) and (3)(c); and add (3)(d) and (5) as follows: 2 18-1-704. Use of physical force in defense of a person - 3 definitions. (3) Notwithstanding the provisions of subsection (1) of this 4 section, a person is not justified in using physical force if: 5 (b) He OR SHE is the initial aggressor; except that his OR HER use 6 of physical force upon another person under the circumstances is 7 justifiable if he OR SHE withdraws from the encounter and effectively 8 communicates to the other person his OR HER intent to do so, but the latter 9 nevertheless continues or threatens the use of unlawful physical force; or 10 (c) The physical force involved is the product of a combat by 11 agreement not specifically authorized by law; OR 12 (d) THE USE OF PHYSICAL FORCE AGAINST ANOTHER IS BASED ON 13 THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF 14 THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER 15 EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO 16 UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED 17 NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. 18 NOTHING IN THIS SUBSECTION (3)(d) PRECLUDES THE ADMISSION OF 19 EVIDENCE, WHICH IS OTHERWISE ADMISSIBLE, OF A VICTIM'S OR WITNESS'S 20 CONDUCT, BEHAVIOR, OR STATEMENTS. 21 (5) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE 22 REQUIRES: 23 (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE 24 SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). 25 (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN 26 SECTION 18-6-800.3. 27 SB20-221 -4- (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN 1 SECTION 18-9-121 (5)(b). 2 SECTION 4. In Colorado Revised Statutes, add 18-1-714 as 3 follows: 4 18-1-714. Protective hearing - victim's, defendant's, or 5 witness's gender identity, gender expression, or sexual orientation - 6 definitions. (1) EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S 7 ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR 8 SEXUAL ORIENTATION OFFERED IN RELATION TO AN AFFIRMATIVE DEFENSE 9 OR PURSUANT TO RULE 404 OF THE COLORADO RULES OF EVIDENCE MAY 10 BE ADMISSIBLE ONLY AT TRIAL AND SHALL NOT BE ADMITTED IN ANY 11 OTHER PROCEEDING EXCEPT AT A PROCEEDING PURSUANT TO SUBSECTION 12 (2) OF THIS SECTION. AT TRIAL, EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR 13 WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, 14 OR SEXUAL ORIENTATION OFFERED BY ANY PARTY IN RELATION TO AN 15 AFFIRMATIVE DEFENSE OR PURSUANT TO RULE 404 OF THE COLORADO 16 RULES OF EVIDENCE IS PRESUMED TO BE IRRELEVANT. 17 (2) IN ANY CRIMINAL PROSECUTION, IF EVIDENCE OF A VICTIM'S, 18 DEFENDANT'S, OR WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, 19 GENDER EXPRESSION, OR SEXUAL ORIENTATION IS TO BE OFFERED BY ANY 20 PARTY AT TRIAL IN RELATION TO AN AFFIRMATIVE DEFENSE OR PURSUANT 21 TO RULE 404 OF THE COLORADO RULES OF EVIDENCE, THE FOLLOWING 22 PROCEDURES SHALL BE FOLLOWED: 23 (a) A WRITTEN MOTION MUST BE MADE AT LEAST THIRTY-FIVE 24 DAYS PRIOR TO TRIAL, UNLESS LATER FOR GOOD CAUSE SHOWN, TO THE 25 COURT AND TO THE OPPOSING PARTIES STATING THAT THE MOVING PARTY 26 HAS AN OFFER OF PROOF OF THE SPECIFIC FACTUAL RELEVANCY AND 27 SB20-221 -5- MATERIALITY OF EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR A WITNESS'S 1 ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR 2 SEXUAL ORIENTATION; 3 (b) THE WRITTEN MOTION MUST BE ACCOMPANIED BY AN 4 AFFIDAVIT IN WHICH THE OFFER OF PROOF IS STATED; 5 (c) IF THE COURT FINDS THAT THE OFFER OF PROOF IS SUFFICIENT, 6 THE COURT SHALL NOTIFY THE OTHER PARTIES. IF THE PROSECUTION 7 STIPULATES TO THE FACTS CONTAINED IN THE OFFER OF PROOF, THE COURT 8 SHALL RULE ON THE MOTION BASED UPON THE OFFER OF PROOF WITHOUT 9 AN EVIDENTIARY HEARING. OTHERWISE, THE COURT SHALL SET AN 10 IN-CAMERA HEARING PRIOR TO TRIAL. IN THE HEARING, TO THE EXTENT 11 THE FACTS ARE IN DISPUTE, THE COURT MAY ALLOW A PRESENTATION OF 12 THE OFFER OF PROOF, INCLUDING BUT NOT LIMITED TO THE PRESENTATION 13 OF WITNESSES. 14 (d) AN IN-CAMERA HEARING MAY BE HELD DURING TRIAL IF 15 EVIDENCE FIRST BECOMES AVAILABLE AT THE TIME OF THE TRIAL OR FOR 16 GOOD CAUSE SHOWN; 17 (e) AT THE CONCLUSION OF THE HEARING, OR BY WRITTEN ORDER 18 IF NO HEARING IS HELD, IF THE COURT FINDS THAT THE EVIDENCE 19 PROPOSED TO BE OFFERED REGARDING A VICTIM'S, DEFENDANT'S, OR A 20 WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, 21 OR SEXUAL ORIENTATION IS RELEVANT TO A MATERIAL ISSUE TO THE CASE, 22 THE COURT SHALL ORDER THAT EVIDENCE MAY BE INTRODUCED AND 23 PRESCRIBE THE NATURE OF THE EVIDENCE OR QUESTIONS TO BE 24 PERMITTED. THE MOVING PARTY MAY THEN OFFER EVIDENCE PURSUANT 25 TO THE ORDER OF THE COURT. 26 (f) ALL MOTIONS AND SUPPORTING DOCUMENTS FILED PURSUANT 27 SB20-221 -6- TO THIS SECTION MUST BE FILED UNDER SEAL AND MAY BE UNSEALED 1 ONLY IF THE COURT RULES THE EVIDENCE IS ADMISSIBLE AND THE CASE 2 PROCEEDS TO TRIAL. IF THE COURT DETERMINES THAT ONLY PART OF THE 3 EVIDENCE CONTAINED IN THE MOTION IS ADMISSIBLE, ONLY THAT PORTION 4 OF THE MOTION AND SUPPORTING DOCUMENTS PERTAINING TO THE 5 ADMISSIBLE PORTION MAY BE UNSEALED. 6 (g) THE COURT SHALL SEAL ALL COURT TRANSCRIPTS, DIGITAL OR 7 OTHER RECORDINGS, AND RECORDS OF PROCEEDINGS, OTHER THAN MINUTE 8 ORDERS, OF A HEARING HELD PURSUANT TO THIS SECTION. THE COURT 9 MAY UNSEAL THE TRANSCRIPTS, DIGITAL OR OTHER RECORDINGS, AND 10 RECORDS ONLY IF THE COURT RULES THE EVIDENCE IS ADMISSIBLE AND 11 THE CASE PROCEEDS TO TRIAL. IF THE COURT DETERMINES THAT ONLY 12 PART OF THE EVIDENCE IS ADMISSIBLE, ONLY THE PORTION OF THE 13 HEARING PERTAINING TO THE ADMISSIBLE EVIDENCE MAY BE UNSEALED. 14 (3) (a) IN ANY CRIMINAL PROSECUTION, THE COURT MAY, AT ANY 15 TIME UPON MOTION OF THE PROSECUTION OR ON THE COURT'S OWN 16 MOTION, ISSUE A PROTECTIVE ORDER PURSUANT TO THE COLORADO RULES 17 OF CRIMINAL PROCEDURE CONCERNING DISCLOSURE OF INFORMATION 18 RELATING TO THE VICTIM OR WITNESS. THE COURT MAY, AT ANY TIME 19 UPON MOTION OF THE DEFENDANT OR ON THE COURT'S OWN MOTION, ISSUE 20 A PROTECTIVE ORDER PURSUANT TO THE COLORADO RULES OF CRIMINAL 21 PROCEDURE CONCERNING DISCLOSURE OF INFORMATION RELATING TO THE 22 DEFENDANT. THE COURT MAY PUNISH A VIOLATION OF A PROTECTIVE 23 ORDER BY CONTEMPT OF COURT. 24 (b) THE PERSON WHO WOULD BE THE SUBJECT OF THE PROTECTIVE 25 ORDER MAY OBJECT TO THE MOTION FOR A PROTECTIVE ORDER. 26 (4) IF EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S 27 SB20-221 -7- ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR 1 SEXUAL ORIENTATION IS ADMITTED AT TRIAL, THE COURT SHALL INSTRUCT 2 THE JURY TO NOT ALLOW BIAS OR ANY KIND OF PREJUDICE BASED UPON 3 GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION TO 4 INFLUENCE ITS DECISION. IF ADMITTED FOR A LIMITED PURPOSE, THE 5 COURT SHALL FURTHER INSTRUCT THE JURY AS TO THE LIMITED PURPOSE 6 OR PURPOSES FOR WHICH THE EVIDENCE IS ADMITTED AND FOR WHICH THE 7 JURY MAY CONSIDER IT. 8 (5) THIS SECTION DOES NOT APPLY WHEN EVIDENCE OF A VICTIM'S 9 ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR 10 SEXUAL ORIENTATION IS OFFERED IN A CRIMINAL PROSECUTION FOR A 11 BIAS-MOTIVATED CRIME AS DESCRIBED IN SECTION 18-9-121. IN SUCH 12 PROSECUTIONS, THE RULES OF EVIDENCE SHALL GOVERN THE 13 ADMISSIBILITY OF EVIDENCE OF A VICTIM'S ACTUAL OR PERCEIVED GENDER 14 IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION. 15 (6) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE 16 REQUIRES: 17 (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE 18 SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). 19 (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN 20 SECTION 18-6-800.3. 21 (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN 22 SECTION 18-9-121 (5)(b). 23 SECTION 5. In Colorado Revised Statutes, 18-1-901, add 24 (3)(h.5) as follows: 25 18-1-901. Definitions. (3) (h.5) "GENDER IDENTITY" AND 26 "GENDER EXPRESSION" MEAN A PERSON'S GENDER-RELATED IDENTITY AND 27 SB20-221 -8- GENDER-RELATED APPEARANCE OR BEHAVIOR WHETHER OR NOT THAT 1 GENDER-RELATED IDENTITY, APPEARANCE, OR BEHAVIOR IS ASSOCIATED 2 WITH THE PERSON'S ASSIGNED SEX AT BIRTH. 3 SECTION 6. In Colorado Revised Statutes, 18-3-103, add (3)(c) 4 and (5) as follows: 5 18-3-103. Murder in the second degree - definitions. 6 (3) (c) FOR PURPOSES OF DETERMINING SUDDEN HEAT OF PASSION 7 PURSUANT TO SUBSECTION (3)(b) OF THIS SECTION, A DEFENDANT'S ACT 8 DOES NOT CONSTITUTE AN ACT PERFORMED UPON A SUDDEN HEAT OF 9 PASSION IF IT RESULTS SOLELY FROM THE DISCOVERY OF, KNOWLEDGE 10 ABOUT, OR POTENTIAL DISCLOSURE OF THE VICTIM'S ACTUAL OR 11 PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL 12 ORIENTATION, INCLUDING BUT NOT LIMITED TO UNDER CIRCUMSTANCES IN 13 WHICH THE VICTIM MADE AN UNWANTED NONFORCIBLE ROMANTIC OR 14 SEXUAL ADVANCE TOWARD THE DEFENDANT. 15 (5) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE 16 REQUIRES: 17 (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE 18 SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). 19 (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN 20 SECTION 18-6-800.3. 21 (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN 22 SECTION 18-9-121 (5)(b). 23 SECTION 7. In Colorado Revised Statutes, 18-3-201, add (1.6), 24 (1.7), and (3) as follows: 25 18-3-201. Definitions. As used in sections 18-3-201 to 18-3-204, 26 unless the context otherwise requires: 27 SB20-221 -9- (1.6) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE 1 SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). 2 (1.7) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN 3 SECTION 18-6-800.3. 4 (3) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN 5 SECTION 18-9-121 (5)(b). 6 SECTION 8. In Colorado Revised Statutes, 18-3-202, add (2)(e) 7 as follows: 8 18-3-202. Assault in the first degree. (2) (e) FOR PURPOSES OF 9 DETERMINING SUDDEN HEAT OF PASSION PURSUANT TO SUBSECTION (2)(a) 10 OF THIS SECTION, A DEFENDANT'S ACT DOES NOT CONSTITUTE AN ACT 11 PERFORMED UPON A SUDDEN HEAT OF PASSION IF IT RESULTS SOLELY FROM 12 THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF 13 THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER 14 EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO 15 UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED 16 NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. 17 SECTION 9. In Colorado Revised Statutes, 18-3-203, add (2)(d) 18 as follows: 19 18-3-203. Assault in the second degree. (2) (d) FOR PURPOSES 20 OF DETERMINING SUDDEN HEAT OF PASSION PURSUANT TO SUBSECTION 21 (2)(a) OF THIS SECTION, A DEFENDANT'S ACT DOES NOT CONSTITUTE AN 22 ACT PERFORMED UPON A SUDDEN HEAT OF PASSION IF IT RESULTS SOLELY 23 FROM THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE 24 OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, 25 GENDER EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT 26 LIMITED TO UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN 27 SB20-221 -10- UNWANTED NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE 1 DEFENDANT. 2 SECTION 10. Safety clause. The general assembly hereby finds, 3 determines, and declares that this act is necessary for the immediate 4 preservation of the public peace, health, or safety. 5 SB20-221 -11-

SENATE BILL 20-221 BY SENATOR(S) Moreno and Tate, Bridges, Coram, Crowder, Danielson, Donovan, Fenberg, Fields, Foote, Ginal, Gonzales, Hansen, Lee, Pettersen, Priola, Rodriguez, Smallwood, Story, Todd, Winter, Woodward, Zenzinger, Garcia; also REPRESENTATIVE(S) Titone and Soper, Arndt, Benavidez, Bird, Buckner, Buentello, Caraveo, Cutter, Duran, Esgar, Exum, Garnett, Gonzales-Gutierrez, Gray, Herod, Hooton, Jackson, Jaquez Lewis, Kipp, Kraft-Tharp, Lontine, McCluskie, McKean, McLachlan, Melton, Michaelson Jenet, Mullica, Roberts, Singer, Sirota, Snyder, Sullivan, Tipper, Valdez A., Valdez D., Weissman, Woodrow, Young, Becker. CONCERNING BANNING THE USE OF A PANIC DEFENSE UNLESS A PARTY CAN SHOW ITS RELEVANCE TO THE COURT. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. The general assembly hereby finds and declares that it is the right of every crime victim to be protected from bias-motivated crimes, including crimes against lesbian, gay, bisexual, transgender, and queer persons. The general assembly further finds and declares that it is the right of every victim and witness to be treated with respect and protected from unfair attack on their character and NOTE: This bill has been prepared for the signatures of the appropriate legislative officers and the Governor. To determine whether the Governor has signed the bill or taken other action on it, please consult the legislative status sheet, the legislative history, or the Session Laws. ________ Capital letters or bold & italic numbers indicate new material added to existing law; dashes through words or numbers indicate deletions from existing law and such material is not part of the act. privacy. So-called "gay panic" and "trans panic" defenses seek to partially or completely excuse a defendant from full accountability for the commission of a violent crime on the grounds that the sexual orientation or gender identity or expression of the victim is sufficient in itself to arouse the heat of passion in the defendant, or contribute to a valid provocation or justification for the violent reaction of the defendant, or cause the defendant to be temporarily insane. In other contexts, a victim's or witness's gender identity or expression or sexual orientation is used to attack their credibility and character and invade their privacy, creating disincentives to testify and impediments to the search for truth and justice. These tactics appeal to irrational fears and hatred of these persons, undermining the legitimacy of criminal prosecutions and resulting in unjustifiable acquittals or sentencing reductions due to bias, fear, shock, or disgust rather than competent evidence. Continued use of these anachronistic defenses and appeals to reinforce bias and institutionalize prejudice at the expense of norms of self-control, tolerance, and compassion, which the law should encourage, and it is an impediment to a just criminal justice system. Any suggestion of legally sanctioned discrimination against a person's sexual orientation or gender identity or expression must end. As the American Bar Association has urged legislative action to curtail the availability and effectiveness of "gay panic" and "trans panic" defenses, the general assembly brings forth this legislation. SECTION 2. In Colorado Revised Statutes, 16-8-101.5, amend (2) as follows: 16-8-101.5. Insanity defined - offenses committed on and after July 1, 1995 - definitions. (2) As used in subsection (1) of this section: (a) "Diseased or defective in mind" does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct. EVIDENCE OF KNOWLEDGE OR AWARENESS OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION SHALL NOT CONSTITUTE INABILITY TO DISTINGUISH RIGHT FROM WRONG. (b) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). (b) (c) "Mental disease or defect" includes only those severely PAGE 2-SENATE BILL 20-221 abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. (d) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN SECTION 18-9-121 (5)(b). SECTION 3. In Colorado Revised Statutes, 18-1-704, amend (3)(b) and (3)(c); and add (3)(d) and (5) as follows: 18-1-704. Use of physical force in defense of a person - definitions. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (b) He OR SHE is the initial aggressor; except that his OR HER use of physical force upon another person under the circumstances is justifiable if he OR SHE withdraws from the encounter and effectively communicates to the other person his OR HER intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law; OR (d) THE USE OF PHYSICAL FORCE AGAINST ANOTHER IS BASED ON THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. NOTHING IN THIS SUBSECTION (3)(d) PRECLUDES THE ADMISSION OF EVIDENCE, WHICH IS OTHERWISE ADMISSIBLE, OF A VICTIM'S OR WITNESS'S CONDUCT, BEHAVIOR, OR STATEMENTS. (5) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES: (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). PAGE 3-SENATE BILL 20-221 (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN SECTION 18-6-800.3. (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN SECTION 18-9-121 (5)(b). SECTION 4. In Colorado Revised Statutes, add 18-1-714 as follows: 18-1-714. Protective hearing - victim's, defendant's, or witness's gender identity, gender expression, or sexual orientation - definitions. (1) EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION OFFERED IN RELATION TO AN AFFIRMATIVE DEFENSE OR PURSUANT TO RULE 404 OF THE COLORADO RULES OF EVIDENCE MAY BE ADMISSIBLE ONLY AT TRIAL AND SHALL NOT BE ADMITTED IN ANY OTHER PROCEEDING EXCEPT AT A PROCEEDING PURSUANT TO SUBSECTION (2) OF THIS SECTION. AT TRIAL, EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION OFFERED BY ANY PARTY IN RELATION TO AN AFFIRMATIVE DEFENSE OR PURSUANT TO RULE 404 OF THE COLORADO RULES OF EVIDENCE IS PRESUMED TO BE IRRELEVANT. (2) IN ANY CRIMINAL PROSECUTION, IF EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION IS TO BE OFFERED BY ANY PARTY AT TRIAL IN RELATION TO AN AFFIRMATIVE DEFENSE OR PURSUANT TO RULE 404 OF THE COLORADO RULES OF EVIDENCE, THE FOLLOWING PROCEDURES SHALL BE FOLLOWED: (a) A WRITTEN MOTION MUST BE MADE AT LEAST THIRTY-FIVE DAYS PRIOR TO TRIAL, UNLESS LATER FOR GOOD CAUSE SHOWN, TO THE COURT AND TO THE OPPOSING PARTIES STATING THAT THE MOVING PARTY HAS AN OFFER OF PROOF OF THE SPECIFIC FACTUAL RELEVANCY AND MATERIALITY OF EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR A WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION; (b) THE WRITTEN MOTION MUST BE ACCOMPANIED BY AN AFFIDAVIT IN WHICH THE OFFER OF PROOF IS STATED; PAGE 4-SENATE BILL 20-221 (c) IF THE COURT FINDS THAT THE OFFER OF PROOF IS SUFFICIENT, THE COURT SHALL NOTIFY THE OTHER PARTIES. IF THE PROSECUTION STIPULATES TO THE FACTS CONTAINED IN THE OFFER OF PROOF, THE COURT SHALL RULE ON THE MOTION BASED UPON THE OFFER OF PROOF WITHOUT AN EVIDENTIARY HEARING. OTHERWISE, THE COURT SHALL SET AN IN-CAMERA HEARING PRIOR TO TRIAL. IN THE HEARING, TO THE EXTENT THE FACTS ARE IN DISPUTE, THE COURT MAY ALLOW A PRESENTATION OF THE OFFER OF PROOF, INCLUDING BUT NOT LIMITED TO THE PRESENTATION OF WITNESSES. (d) AN IN-CAMERA HEARING MAY BE HELD DURING TRIAL IF EVIDENCE FIRST BECOMES AVAILABLE AT THE TIME OF THE TRIAL OR FOR GOOD CAUSE SHOWN; (e) AT THE CONCLUSION OF THE HEARING, OR BY WRITTEN ORDER IF NO HEARING IS HELD, IF THE COURT FINDS THAT THE EVIDENCE PROPOSED TO BE OFFERED REGARDING A VICTIM'S, DEFENDANT'S, OR A WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION IS RELEVANT TO A MATERIAL ISSUE TO THE CASE, THE COURT SHALL ORDER THAT EVIDENCE MAY BE INTRODUCED AND PRESCRIBE THE NATURE OF THE EVIDENCE OR QUESTIONS TO BE PERMITTED. THE MOVING PARTY MAY THEN OFFER EVIDENCE PURSUANT TO THE ORDER OF THE COURT. (f) ALL MOTIONS AND SUPPORTING DOCUMENTS FILED PURSUANT TO THIS SECTION MUST BE FILED UNDER SEAL AND MAY BE UNSEALED ONLY IF THE COURT RULES THE EVIDENCE IS ADMISSIBLE AND THE CASE PROCEEDS TO TRIAL. IF THE COURT DETERMINES THAT ONLY PART OF THE EVIDENCE CONTAINED IN THE MOTION IS ADMISSIBLE, ONLY THAT PORTION OF THE MOTION AND SUPPORTING DOCUMENTS PERTAINING TO THE ADMISSIBLE PORTION MAY BE UNSEALED. (g) THE COURT SHALL SEAL ALL COURT TRANSCRIPTS, DIGITAL OR OTHER RECORDINGS, AND RECORDS OF PROCEEDINGS, OTHER THAN MINUTE ORDERS, OF A HEARING HELD PURSUANT TO THIS SECTION. THE COURT MAY UNSEAL THE TRANSCRIPTS, DIGITAL OR OTHER RECORDINGS, AND RECORDS ONLY IF THE COURT RULES THE EVIDENCE IS ADMISSIBLE AND THE CASE PROCEEDS TO TRIAL. IF THE COURT DETERMINES THAT ONLY PART OF THE EVIDENCE IS ADMISSIBLE, ONLY THE PORTION OF THE HEARING PERTAINING TO THE ADMISSIBLE EVIDENCE MAY BE UNSEALED. (3) (a) IN ANY CRIMINAL PROSECUTION, THE COURT MAY, AT ANY PAGE 5-SENATE BILL 20-221 TIME UPON MOTION OF THE PROSECUTION OR ON THE COURT'S OWN MOTION, ISSUE A PROTECTIVE ORDER PURSUANT TO THE COLORADO RULES OF CRIMINAL PROCEDURE CONCERNING DISCLOSURE OF INFORMATION RELATING TO THE VICTIM OR WITNESS. THE COURT MAY, AT ANY TIME UPON MOTION OF THE DEFENDANT OR ON THE COURT'S OWN MOTION, ISSUE A PROTECTIVE ORDER PURSUANT TO THE COLORADO RULES OF CRIMINAL PROCEDURE CONCERNING DISCLOSURE OF INFORMATION RELATING TO THE DEFENDANT. THE COURT MAY PUNISH A VIOLATION OF A PROTECTIVE ORDER BY CONTEMPT OF COURT. (b) THE PERSON WHO WOULD BE THE SUBJECT OF THE PROTECTIVE ORDER MAY OBJECT TO THE MOTION FOR A PROTECTIVE ORDER. (4) IF EVIDENCE OF A VICTIM'S, DEFENDANT'S, OR WITNESS'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION IS ADMITTED AT TRIAL, THE COURT SHALL INSTRUCT THE JURY TO NOT ALLOW BIAS OR ANY KIND OF PREJUDICE BASED UPON GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION TO INFLUENCE ITS DECISION. IF ADMITTED FOR A LIMITED PURPOSE, THE COURT SHALL FURTHER INSTRUCT THE JURY AS TO THE LIMITED PURPOSE OR PURPOSES FOR WHICH THE EVIDENCE IS ADMITTED AND FOR WHICH THE JURY MAY CONSIDER IT. (5) THIS SECTION DOES NOT APPLY WHEN EVIDENCE OF A VICTIM'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION IS OFFERED IN A CRIMINAL PROSECUTION FOR A BIAS-MOTIVATED CRIME AS DESCRIBED IN SECTION 18-9-121. IN SUCH PROSECUTIONS, THE RULES OF EVIDENCE SHALL GOVERN THE ADMISSIBILITY OF EVIDENCE OF A VICTIM'S ACTUAL OR PERCEIVED GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION. (6) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES: (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN SECTION 18-6-800.3. (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN SECTION PAGE 6-SENATE BILL 20-221 18-9-121 (5)(b). SECTION 5. In Colorado Revised Statutes, 18-1-901, add (3)(h.5) as follows: 18-1-901. Definitions. (3) (h.5) "GENDER IDENTITY" AND "GENDER EXPRESSION" MEAN A PERSON'S GENDER-RELATED IDENTITY AND GENDER-RELATED APPEARANCE OR BEHAVIOR WHETHER OR NOT THAT GENDER-RELATED IDENTITY, APPEARANCE, OR BEHAVIOR IS ASSOCIATED WITH THE PERSON'S ASSIGNED SEX AT BIRTH. SECTION 6. In Colorado Revised Statutes, 18-3-103, add (3)(c) and (5) as follows: 18-3-103. Murder in the second degree - definitions. (3) (c) FOR PURPOSES OF DETERMINING SUDDEN HEAT OF PASSION PURSUANT TO SUBSECTION (3)(b) OF THIS SECTION, A DEFENDANT'S ACT DOES NOT CONSTITUTE AN ACT PERFORMED UPON A SUDDEN HEAT OF PASSION IF IT RESULTS SOLELY FROM THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. (5) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES: (a) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). (b) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN SECTION 18-6-800.3. (c) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN SECTION 18-9-121 (5)(b). SECTION 7. In Colorado Revised Statutes, 18-3-201, add (1.6), (1.7), and (3) as follows: PAGE 7-SENATE BILL 20-221 18-3-201. Definitions. As used in sections 18-3-201 to 18-3-204, unless the context otherwise requires: (1.6) "GENDER IDENTITY" AND "GENDER EXPRESSION" HAVE THE SAME MEANING AS IN SECTION 18-1-901 (3)(h.5). (1.7) "INTIMATE RELATIONSHIP" HAS THE SAME MEANING AS IN SECTION 18-6-800.3. (3) "SEXUAL ORIENTATION" HAS THE SAME MEANING AS IN SECTION 18-9-121 (5)(b). SECTION 8. In Colorado Revised Statutes, 18-3-202, add (2)(e) as follows: 18-3-202. Assault in the first degree. (2) (e) FOR PURPOSES OF DETERMINING SUDDEN HEAT OF PASSION PURSUANT TO SUBSECTION (2)(a) OF THIS SECTION, A DEFENDANT'S ACT DOES NOT CONSTITUTE AN ACT PERFORMED UPON A SUDDEN HEAT OF PASSION IF IT RESULTS SOLELY FROM THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. SECTION 9. In Colorado Revised Statutes, 18-3-203, add (2)(d) as follows: 18-3-203. Assault in the second degree. (2) (d) FOR PURPOSES OF DETERMINING SUDDEN HEAT OF PASSION PURSUANT TO SUBSECTION (2)(a) OF THIS SECTION, A DEFENDANT'S ACT DOES NOT CONSTITUTE AN ACT PERFORMED UPON A SUDDEN HEAT OF PASSION IF IT RESULTS SOLELY FROM THE DISCOVERY OF, KNOWLEDGE ABOUT, OR POTENTIAL DISCLOSURE OF THE VICTIM'S ACTUAL OR PERCEIVED GENDER, GENDER IDENTITY, GENDER EXPRESSION, OR SEXUAL ORIENTATION, INCLUDING BUT NOT LIMITED TO UNDER CIRCUMSTANCES IN WHICH THE VICTIM MADE AN UNWANTED NONFORCIBLE ROMANTIC OR SEXUAL ADVANCE TOWARD THE DEFENDANT. SECTION 10. Safety clause. The general assembly hereby finds, PAGE 8-SENATE BILL 20-221 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety. ____________________________ ____________________________ Leroy M. Garcia KC Becker PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Cindi L. Markwell Robin Jones SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ (Date and Time) _________________________________________ Jared S. Polis GOVERNOR OF THE STATE OF COLORADO PAGE 9-SENATE BILL 20-221