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NM lawmakers weigh prohibition on ‘queer panic defense’

In this file photo, Sen. Jacob Candelaria, D-Albuquerque, speaks on the Senate floor during debate on a COVID-19 relief package. He is a co-sponsor of legislation to ban the “queer panic defense” in New Mexico. (Eddie Moore/Albuquerque Journal)

SANTA FE — A proposal advancing toward passage in the Senate would bar criminal defendants in New Mexico from asserting the discovery of a person’s gender or sexual orientation caused them to harm the victim.

The legislation, Senate Bill 213, picked up bipartisan support Saturday as it cleared the Senate Judiciary Committee without opposition. Its next stop is the full Senate.

The proposal would also need House approval by next Saturday to reach the governor’s desk.

In an online hearing Saturday, supporters of the legislation shared stories about the terror of seeing people targeted for their sexual orientation.

“A dear friend of mine was burned to death in his car for coming on to somebody,” Sen. Liz Stefanics, D-Cerrillos, told her colleagues. “The person’s defense was that he panicked when he was approached by a man. It just wasn’t appropriate.”

Marshall Martinez of Equality New Mexico said he was afraid to come out in high school after the 1998 torture and death of Matthew Shepard, a gay college student killed in Wyoming.

“I lived three years without telling my best friend, my mom, that I was gay — that entire time believing my humanity, my worthiness of being protected from violence,” Martinez said, “would be decided not on what happened to me, but based on something I could not control, my sexual orientation.”

Senate Bill 213 would prohibit a defense based on a defendant’s discovery or knowledge of a victim’s gender or sexual orientation. It would also prohibit a defense based on the defendant having been propositioned in a nonthreatening manner by a person of the same gender or a person who is transgender.

Sen. Jacob Candelaria, an Albuquerque Democrat who pushed to get the bill heard by the committee, said the practical effect of the legislation would be to ban use of the “queer panic defense.”

Without the prohibition, he said, criminal defendants could claim they lost control and weren’t responsible for harming a victim upon discovering the person’s gender, gender identity, gender expression or sexual orientation.

“This defense implies that LGBTQ lives are worth less than others,” Candelaria said.

The co-sponsors of the measure are Candelaria, Stefanics and Sen. Leo Jaramillo, D-Española.

After last year’s election, four LGBTQ lawmakers joined the Legislature this session, bringing the total to six.

Stefanics said in an interview that her friend was beaten and burned in Albuquerque in the 1990s.

“It was horrifying and shocking,” Stefanics said. “At the time, people weren’t out to protect gay people.”

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