Text of NV SB 97 (2019)

S.B. 97 - *SB97* SENATE BILL NO. 97–COMMITTEE ON JUDICIARY (ON BEHALF OF THE NEVADA YOUTH LEGISLATURE) PREFILED JANUARY 24, 2019 ____________ Referred to Committee on Judiciary SUMMARY—Prohibits use in a criminal case of certain defenses based on the sexual orientation or gender identity or expression of the victim. (BDR 15-559) FISCAL NOTE: Effect on Local Government: No. Effect on the State: No. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to crimes; prohibiting the use in a criminal case of certain defenses based on the sexual orientation or gender identity or expression of the victim; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law provides that if a person commits certain crimes because of the 1 actual or perceived sexual orientation or gender identity or expression of a victim: 2 (1) the person who committed the crime is subject to an additional penalty; (2) 3 unless a greater penalty is provided by law, the person who committed the crime is 4 guilty of a gross misdemeanor; and (3) a person injured by the crime may bring a 5 civil action against the person who committed the crime. (NRS 41.690, 193.1675, 6 207.185) Existing law also requires the Director of the Department of Public Safety 7 to establish a program for reporting crimes that is designed to collect, compile and 8 analyze statistical data about crimes that manifest evidence of prejudice based on 9 sexual orientation or gender identity or expression. (NRS 179A.175) 10 This bill provides that: (1) for the purpose of determining the existence of an 11 alleged state of passion in a defendant or the alleged provocation of a defendant by 12 a victim, the alleged state of passion or provocation shall be deemed not to be 13 objectively reasonable if it resulted from the discovery of, knowledge about or 14 potential disclosure of the actual or perceived sexual orientation or gender identity 15 or expression of the victim; (2) a defendant does not suffer from reduced mental 16 capacity based on the discovery of, knowledge about or potential disclosure of the 17 actual or perceived sexual orientation or gender identity or expression of the victim; 18 and (3) a person is not justified in using force against another person based on the 19 discovery of, knowledge about or potential disclosure of the actual or perceived 20 sexual orientation or gender identity or expression of the victim. 21 – 2 – - *SB97* WHEREAS, The American Bar Association has urged legislative 1 action to curtail the availability and effectiveness of the “gay panic” 2 and “trans panic” defenses, which seek to partially or completely 3 excuse a defendant from full accountability for the commission of a 4 violent crime on the grounds that the sexual orientation or gender 5 identity or expression of the victim is sufficient to arouse a state of 6 passion in the defendant, serve as valid provocation or justification 7 for the violent reaction of the defendant or reduce the mental 8 capacity of the defendant; and 9 WHEREAS, “Gay panic” and “trans panic” legal defenses, which 10 continue to be raised in criminal cases in courts across the United 11 States, are surprisingly long-lived, historical artifacts and remnants 12 of a time when widespread public antipathy was the norm for 13 lesbian, gay, bisexual and transgender persons; and 14 WHEREAS, “Gay panic” and “trans panic” defenses characterize 15 sexual orientation or gender identity or expression as objectively 16 reasonable excuses for loss of self-control and thereby illegitimately 17 mitigate the responsibility of a defendant for harm done to lesbian, 18 gay, bisexual and transgender persons; and 19 WHEREAS, “Gay panic” and “trans panic” defenses appeal to 20 irrational fears and hatred of lesbian, gay, bisexual and transgender 21 persons, thereby undermining the legitimacy of criminal 22 prosecutions and resulting in unjustifiable acquittals or sentencing 23 reductions; and 24 WHEREAS, The use of “gay panic” and “trans panic” defenses is 25 entirely incompatible with the express intent of Nevada law to 26 provide increased protection to victims of bias-motivated crimes, 27 including crimes committed against lesbian, gay, bisexual and 28 transgender persons; and 29 WHEREAS, Continued use of these anachronistic defenses 30 reinforces and institutionalizes prejudice at the expense of norms of 31 self-control, tolerance and compassion, which the law should 32 encourage, and marks an egregious lapse in the march toward a 33 more just criminal justice system; and 34 WHEREAS, To end the antiquated notion that the lives of lesbian, 35 gay, bisexual and transgender persons are worth less than the lives 36 of other persons and to reflect a modern understanding of lesbian, 37 gay, bisexual and transgender persons as equal to other persons 38 under the law, the use of “gay panic” and “trans panic” defenses 39 must end; now, therefore, 40 – 3 – - *SB97* THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN 1 SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: 2 3 Section 1. Chapter 193 of NRS is hereby amended by adding 4 thereto a new section to read as follows: 5 1. For the purpose of determining the existence of an alleged 6 state of passion in a defendant or the alleged provocation of a 7 defendant by a victim, the alleged state of passion or provocation 8 shall be deemed not to be objectively reasonable if it resulted from 9 the discovery of, knowledge about or potential disclosure of the 10 actual or perceived sexual orientation or gender identity or 11 expression of the victim, including, without limitation, under 12 circumstances in which the victim made an unwanted nonforcible 13 romantic or sexual advance towards the defendant, or if the 14 defendant and victim dated or had a romantic or sexual 15 relationship. 16 2. A defendant does not suffer from reduced mental capacity 17 based on the discovery of, knowledge about or potential disclosure 18 of the actual or perceived sexual orientation or gender identity or 19 expression of the victim, including, without limitation, under 20 circumstances in which the victim made an unwanted nonforcible 21 romantic or sexual advance towards the defendant, or if the 22 defendant and victim dated or had a romantic or sexual 23 relationship. 24 3. A person is not justified in using force against another 25 person based on the discovery of, knowledge about or potential 26 disclosure of the actual or perceived sexual orientation or gender 27 identity or expression of the victim, including, without limitation, 28 under circumstances in which the victim made an unwanted 29 nonforcible romantic or sexual advance towards the defendant, or 30 if the defendant and victim dated or had a romantic or sexual 31 relationship. 32 H

- 80th Session (2019) Senate Bill No. 97–Committee on Judiciary CHAPTER.......... AN ACT relating to crimes; prohibiting the use in a criminal case of certain defenses based on the sexual orientation or gender identity or expression of the victim; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law provides that if a person commits certain crimes because of the actual or perceived sexual orientation or gender identity or expression of a victim: (1) the person who committed the crime is subject to an additional penalty; (2) unless a greater penalty is provided by law, the person who committed the crime is guilty of a gross misdemeanor; and (3) a person injured by the crime may bring a civil action against the person who committed the crime. (NRS 41.690, 193.1675, 207.185) Existing law also requires the Director of the Department of Public Safety to establish a program for reporting crimes that is designed to collect, compile and analyze statistical data about crimes that manifest evidence of prejudice based on sexual orientation or gender identity or expression. (NRS 179A.175) This bill provides that: (1) for the purpose of determining the existence of an alleged state of passion in a defendant or the alleged provocation of a defendant by a victim, the alleged state of passion or provocation shall be deemed not to be objectively reasonable if it resulted from the discovery of, knowledge about or potential disclosure of the actual or perceived sexual orientation or gender identity or expression of the victim; and (2) a person is not justified in using force against another person based on the discovery of, knowledge about or potential disclosure of the actual or perceived sexual orientation or gender identity or expression of the victim. EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. WHEREAS, The American Bar Association has urged legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which 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 to arouse a state of passion in the defendant or serve as valid provocation or justification for the violent reaction of the defendant; and WHEREAS, “Gay panic” and “trans panic” legal defenses, which continue to be raised in criminal cases in courts across the United States, are surprisingly long-lived, historical artifacts and remnants of a time when widespread public antipathy was the norm for lesbian, gay, bisexual and transgender persons; and WHEREAS, “Gay panic” and “trans panic” defenses characterize sexual orientation or gender identity or expression as objectively reasonable excuses for loss of self-control and thereby illegitimately – 2 – - 80th Session (2019) mitigate the responsibility of a defendant for harm done to lesbian, gay, bisexual and transgender persons; and WHEREAS, “Gay panic” and “trans panic” defenses appeal to irrational fears and hatred of lesbian, gay, bisexual and transgender persons, thereby undermining the legitimacy of criminal prosecutions and resulting in unjustifiable acquittals or sentencing reductions; and WHEREAS, The use of “gay panic” and “trans panic” defenses is entirely incompatible with the express intent of Nevada law to provide increased protection to victims of bias-motivated crimes, including crimes committed against lesbian, gay, bisexual and transgender persons; and WHEREAS, Continued use of these anachronistic defenses reinforces and institutionalizes prejudice at the expense of norms of self-control, tolerance and compassion, which the law should encourage, and marks an egregious lapse in the march toward a more just criminal justice system; and WHEREAS, To end the antiquated notion that the lives of lesbian, gay, bisexual and transgender persons are worth less than the lives of other persons and to reflect a modern understanding of lesbian, gay, bisexual and transgender persons as equal to other persons under the law, the use of “gay panic” and “trans panic” defenses must end; now, therefore, THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 193 of NRS is hereby amended by adding thereto a new section to read as follows: 1. For the purpose of determining the existence of an alleged state of passion in a defendant or the alleged provocation of a defendant by a victim, the alleged state of passion or provocation shall be deemed not to be objectively reasonable if it resulted from the discovery of, knowledge about or potential disclosure of the actual or perceived sexual orientation or gender identity or expression of the victim, including, without limitation, under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. 2. A person is not justified in using force against another person based on the discovery of, knowledge about or potential disclosure of the actual or perceived sexual orientation or gender identity or expression of the victim, including, without limitation, – 3 – - 80th Session (2019) under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. 20 ~~~~~ 19