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Crime and Courts

Colorado still allows killers to use gay or transgender “panic” defenses. But the strategy could soon be outlawed.

The strategy has recently been outlawed in a number of states, including California, New York and New Jersey. It’s still used in Colorado, though sparingly.

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When Allen Andrade was charged with murdering a transgender woman in 2008, he argued that he killed her in the heat of passion after learning she had male genitalia. Andrade simply snapped, his attorneys said, and shouldn’t be sent to prison for the rest of his life. 

In fact, Andrade’s attorneys claimed, he was provoked into fatally beating 18-year-old Angie Zapata in Greeley when he grabbed her crotch as she was performing oral sex on him. 

“He lost control,” Andrade’s lawyer argued, according to The New York Times.

The defense strategy didn’t work, and Andrade was convicted of first-degree murder and a hate crime and sentenced to life in prison without the possibility of parole. But the tactic — known as a gay or transgender “panic” defense — is still permissible under Colorado law for defendants in cases of homicide or assault.

The tactic essentially allows defendants to ask jurors to find that their victim’s sexual orientation or gender identity — if someone is lesbian, gay, bisexual, transgender or queer — prompted their actions, such as a serious assault or homicide. In Andrade’s case, he was seeking to reduce his first-degree murder charge to a second-degree murder.

Colorado lawmakers have teamed up with prosecutors this year to try to join a handful of other states in outlawing the defense strategy, which LGBTQ advocates argue is purely bigoted and harkens back to a time of hate. One Colorado, the state’s largest LGBTQ advocacy organization, supports the bill. 

House Bill 1307 has bipartisan support and comes not long after lawmakers rejected a slate of legislation aimed at rolling back or restricting protections for LGBTQ Coloradans. 

Allen Andrade, now 43, was sentenced to life in prison without the possibility of parole for fatally beating 18-year-old Angie Zapata. His lawyers tried to use what’s known as a gay or trans “panic” defense so he wouldn’t face such a long prison sentence. (Provided by the Colorado Department of Corrections)

Rep. Leslie Herod, a Denver Democrat, said she brought the bill after being “appalled” when she learned the defense was still admissible in Colorado. She thinks it’s wrong to continue a tactic that creates a situation where a victim’s “sexual history (is) being brought out in public and people (are) being dragged through the mud for no reason.”

And she worries that an increasing number of defendants might try to use the defense. 

“Trans women of color, in particular, are being killed across the country at alarming rates,” she said. “Queer people, in general, are being targeted in alarming rates.”

Also leading the push for the bill are Rep. Matt Soper, a Delta Republican, and Sens. Jack Tate, a Centennial Republican, and Jeff Bridges, a Greenwood Village Democrat. 

“Just because you are straight and being hit on by someone of the same sex in, say, a bar, shouldn’t cause you to have such a panic as to be able to pull out your Glock and kill them,” Soper said. 

From left: Reps. Leslie Herod and Matt Soper outside the governor’s office pose with stakeholders after Gov. Jared Polis signed a criminal justice reform bill into law. (Jesse Paul, The Colorado Sun)

The defense strategy has already been outlawed in California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York and New Jersey, according to the LGBT Bar Association. But that’s only happened recently. California paved the way in 2014. 

A number of other states have tried, unsuccessfully, to follow suit. But the bipartisan coalition backing House Bill 1307 suggests it has a wide lane toward passage in the Colorado legislature. 

“‘Because they’re gay’ shouldn’t count as any kind of mitigating factor,” Bridges said.

Tate echoed that sentiment.

“One can defend yourself from an attack,” he said, “and the law should protect you. But the law should not presume an entire class of people to be predatory. thus allowing for someone to justify committing violence and murder.”

Amanda Gall, a sex crimes prosecutor who lobbies on behalf of the Colorado District Attorneys’ Council, said the defense strategy is still one that’s put to use, though not in most cases.

“I don’t know if I would describe it as rare,” she said, “but it’s not super frequent.”

Part of the reason the public rarely hears about the strategy is because when it’s successfully used, cases are sealed, say proponents of outlawing the defense argument.

Gall, in fact, recently prosecuted a murder in Jefferson County in which the killer tried to use the tactic. 

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The defendant fatally stabbed a young gay man on Colfax Avenue in 2013 and tried to say it was a case of self defense because the victim made a sexual advance on him. But the judge overseeing the case would not allow it.

“When defendants run this defense, they are really asking for their conduct to be excused based on a bias against LGTBQ victims,” Gall said. 

She said that’s wrong and recalls a painful time decades ago.

“You just can’t say that your action was more reasonable because (your victim was) gay versus straight,” Gall argued.

The Colorado Criminal Defense Bar is opposing the bill.

“As a member of the LGBTQ community myself, I certainly understand and am sensitive to the proponents’ concerns behind this legislation,” said Tristan Gorman, the defense bar’s legislative policy coordinator. “However, the Colorado Criminal Defense Bar must be consistent in its advocacy for the rights of the accused and against the government stripping anyone of their constitutional right to present a defense.” 

House Bill 1307 is not yet scheduled for its first hearing.

Rising Sun