DENVER (CBS4) – Using a person’s sexual orientation or gender identity as an excuse for murder or violence is no longer a valid defense in Colorado courtrooms. Colorado is now the 11th state to outlaw the so-called “gay or trans panic defense.”
The most publicized case where the defense was used is the Matthew Shepard murder trial in Wyoming in 1999. After torturing Shepard, tying him to a barbed wire fence, and leaving him to die, one of his killers argued temporary insanity, saying he lost control when Shepard made a sexual advance.
22 years later, Gov. Jared Polis signed a bill into law that outlaws the defense in Colorado, saying “A person’s sexual orientation or gender identity are never a reason to excuse somebody from committing a crime.”
Jason Marsden was Shepard’s friend and now helps run a foundation in his name.
“On one level it’s kind of an insult to his memory because we should have been done this a long time ago, but on another level it is progress,” he said.
Marsden says the defense has been used in hundreds of cases nationwide.
The Colorado District Attorneys’ Council says that statewide there were nearly 130 criminal cases between 2014 and 2018 where the victim was targeted based on their sexual orientation or gender identity, but there is no record of how often the gay or trans panic defense has been used. In those instances where it’s successful, the records are sealed.
The Angie Zapata murder trial in Weld County is the first time in the country the trans panic defense was used. The defendant said he snapped in 2008 when he learned Zapata was a man and killed her. The jury didn’t buy it and convicted him of first degree murder.
In Jefferson County, 2013 murder suspect Cody Sewick tried to use the gay panic defense, but prosecutor Amanda Gall got it tossed.
“Whenever it happens, wherever it happens, it’s wrong. American courtrooms should have cases that are heard and decided based on facts and law, and it should be free from bias and prejudice,” Gall said.
Gall, who now works for the Colorado District Attorneys’ Council, helped draft the bill. It almost didn’t pass. It is one of the bills that Democratic leadership in the Senate killed when the session was shortened because of COVID-19. State Sen. Jack Tate, a Republican, reintroduced the bill and, with help from Democrats and fellow Republicans, fought to get it passed.
“Sometimes the journey is circular and winding, but we’re here today nonetheless,” Tate said.
Marsden says Shepherd, a human rights activist, would have been among those pushing for the bill’s passage.
“If we were going to lose him to the fates, I’d be hard pressed to describe a better scenario in terms of his memory being honored,” he said.
The new law not bars the use of the gay or trans panic defense but any reference to a person’s sexual orientation or gender identity in court unless a judge approves it first.