ABKLaw BLOG by Partner Hon. Barry Kamins: New York Law Journal Criminal Law and Procedure column

New York Eliminates a Criminal Defense: A Due Process Violation?

On June 30th, New York became the seventh state to ban what is referred to as the “gay and trans panic defense”. Under the new law (Ch.45, L. 2019) that became effective immediately, a defendant is now precluded from raising the defense of extreme emotional disturbance upon discovering a victim’s sexual orientation, sex or gender. The defense had been used to mitigate a defendant’s culpability in a murder case by reducing the crime to manslaughter in the first degree.

A number of defense organizations have opposed the law on the ground that it violates a defendant’s right to due process by preventing an individual from raising a defense at trial or for purposes of plea bargaining. This column will explore the new law and the legal challenges it may face.

Should there be a court challenge to the new law prohibiting the use of the gay panic defense, proponents of the law will undoubtedly argue that it serves New York’s public policy of banning discrimination based on sexual orientation or gender identity. Ultimately, the Court of Appeals will have to determine whether this strong public policy outweighs a defendant’s right to due process in presenting a complete defense.

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