Lisa Kuhnhausen-Woods had never heard of the ‘panic defence’ – where an accused person says they acted violently due to the shock of finding out someone is gay or transgender – until the body of her missing 17-year-old daughter was found in a forest.
The police have said that the man accused of murdering Nikki, who was trans, told them that when she disclosed her gender identity to him, it made him “really uncomfortable” and “disturbed him”.
When Kuhnhausen-Woods realised that ‘trans panic’ could be used as a defence in her daughter’s case, she decided to act – and started drumming up support for a bill that would see the legal strategy banned in Washington state where she lives.
“Nikki didn’t deserve this … it was a hate crime,” Kuhnausen-Woods, 52, told the Thomson Reuters Foundation. “I don’t feel there’s any justification in the panic defence.”
The suspect pleaded not guilty to charges of second-degree murder and malicious harassment, with trial set for July.
Washington is likely to become the 10th US state to ban ‘gay panic’ and ‘trans panic’ defences, after the state Senate on Wednesday approved the Nikki Kuhnhausen Act. Governor Jay Inslee is expected to approve the bill in the next few weeks.
Laws banning the panic defence are being considered in at least five other US states, while federal legislation outlawing the practice was introduced last year.
New Zealand banned the panic defence in 2009, and Australia plans to outlaw it in South Australia, the country’s last state where it is still legal.
“It’s not going to help Nikki’s case but it will help future families,” said Kuhnhausen-Woods. “There are other beautiful transgender children out there that need to be protected.”
Rights advocates say that outlawing the panic defence will not only ensure justice for victims of LGBT+ hate crimes, but also help tackle homophobia and transphobia in US courts.
“These laws help root out anti-LGBT bias in the justice system,” Richard Saenz, an attorney at LGBT+ rights group, Lambda Legal, said in emailed comments.
“There is momentum to prohibit a defence that … depends on the court system to permit the dehumanisation of LGBT victims of hate violence.”
The panic defence has been condemned by the American Bar Association, but it is still widely used in cases involving gay and trans victims to reduce charges or even acquit defendants.
Carsten Andresen, a criminal justice expert at St. Edward’s University in Texas has tracked 104 cases where panic defences have been used since 1970. Of these, 16 have occurred in the last three years.
Andresen said the actual number may be far higher, given the strategy is rarely named directly, making it difficult to track.
“This tactic is much more widespread than people might recognise,” Andresen said. “There are a lot of cases where they don’t attract attention … and so this homophobic or transphobic bias seeps into the cases.”
Defendants who used the gay panic defence had murder charges reduced in nearly a third of cases, Andresen’s analysis found.
In 2018, a man charged with killing his male neighbour in Texas was convicted of the state’s lowest grade felony, and was sentenced to six months in jail, after his attorney argued that he acted in self-defence following unwanted sexual advances.
“There are these really ugly biases out there,” said Andresen. “It is really chilling to the (LGBT+) community if they think that someone can get a lower penalty or even an acquittal if they use that defence.”
Sharon Wylie, a Democratic house representative in Washington who has been advocating for Nikki’s bill, said more needs to be done to protect vulnerable young trans people.
“The whole community was shocked,” she said. “But we shouldn’t have been because trans people, and trans teenagers particularly, are having a pretty rough time.”
According to American LGBT+ rights group the Human Rights Campaign, 26 trans people were killed in 2019 in the United States, with two murders already this year.
FBI data shows nearly one in five of more than 7,000 hate crimes in 2018 were motivated by anti-LGBT+ bias, while the number of anti-trans incidents rose by 34% in a year to 142.
Gay and trans rights have come under fire under US President Donald Trump’s administration, with half a dozen states recently introducing legislation that would limit healthcare access for trans teenagers.
Trump has banned trans people from serving openly in the military, and proposed that firms with federal contracts can shun LGBT+ candidates on religious grounds.
Wylie said outlawing the panic defence also sends a broader message about LGBT+ acceptance.
“We have a new generation to educate, and we have to take all the next steps to make sure that our trans people … are protected and safe and respected,” she said.
Washington state’s bill bans defences that claim a defendant suffered from diminished capacity after learning a victim’s gender identity or sexual orientation, and that the use of force cannot be justified by this discovery.
Kuhnhausen-Woods said she has constantly fought through her own grief to push for change.
“I have to be there and be strong for her … because I want to make Nikki proud of me,” she said. “But when I have down time it’s not so good … I look at her pictures and her TikToks and then I just cry.”
But Kuhnhausen-Woods said she has found comfort in the fact that some small measure of good has come from Nikki’s death.
“If this passes, and it’s named after her, at least she’ll be remembered forever.”
-Oscar Lopez – Thomson Reuters Foundation