An anti-discrimination bill to help protect the LGBTQ community in the state will be filed in January ahead of the state legislative session.
State Sen. Jacob Candelaria, D-Albuquerque, is sponsoring the panic defense bill, which he introduced in the 2019 Legislature. That year, SB 159 passed two committees but Candelaria said he pulled the bill to wait for a friendlier time in the Legislature.
He noted that after the Nov. 3 election, there will be six lawmakers, including Candelaria, who are openly members of the LGBTQ community.
But, 2021 is the year to try to pass the bill “not only because we have more queer people,” in the Legislature but because “the conversation has evolved,” he said.
The bill is designed to prevent someone who commits a violent crime from using the victim’s sexual orientation as a legal defense in court.
One of the more well-known instances when this defense was attempted happened in Wyoming during the criminal trial against Aaron McKinney. McKinney, along with his partner Russell Henderson, killed Wyoming resident Matthew Shepard 22 years ago.
McKinney’s lawyer tried to enter the defense argument that Shepard tried to make a sexual advance on McKinney, which caused McKinney to fly into a rage. But the Wyoming judge didn’t allow the panic defense in McKinney’s case. Both McKinney and Henderson are serving two consecutive life sentences, according to The Mercury News.
Marshall Martinez, interim executive director of Equality New Mexico, said the bill is part of a larger effort to pass similar bills around the country. California and Rhode Island were the first, with bills enacted into law in 2014. Since then, nine additional states have followed suit.
Candelaria said he would like to see New Mexico become the twelfth state to pass the law.
“Violence against queer people is much higher than the general population. For far too long, our criminal justice system has been unresponsive to the needs of the queer community and, at times, has been quite hostile. If we’re truly to live up to the belief that every person is equal under the law, then we have to enact this legislation,” he said.
Martinez said there has been an uptick nationwide of crimes against the LGBTQ community in the last three years.
He said the current political rhetoric at the national level is a factor.
“We’ve seen this across the board with attacks on immigrants and Muslim folks. People living in crisis times are looking for the so-called ‘other’ to take out those frustrations. That has led to some of the increase,” Martinez said.
Martinez said that people who are hostile to LGBTQ rights “increase their rhetoric because they’re losing the American public on those issues.”
That becomes a “soft signal that hatred and violence is okay,” he said.
Candelaria said that the Legislature is within its scope to pass this law, which would inform the judiciary that this particular type of defense is unlawful.
“I don’t see this as the Legislature inserting itself into the judiciary process. I see this as a fundamental policy role as what constitutes a crime,” he said.
He said “laws are an expression of community values.”
He said that not passing the Legislation means the state is allowing perpetrators of violent crime to say, as part of their defense, that surprise or disgust toward a person who identifies as LGBTQ could lead to no culpability or a lesser charge.
“The laws are an expression of our community values,” Candelaria said. “We’re sending a very clear message about this.”