It Shouldn’t Have Been This Hard

At the end of it all, the final vote was a formality.

On Thursday morning, the Senate Judiciary Committee held a very brief session on H.128, the bill that would ban the so-called “gay panic” defense in criminal trials. You know, the bill that passed the House 144 to one?

After many hearings full of farfetched hypotheticals and occasional racist-adjacent argumentation, the committee voted unanimously to send the bill to the Senate floor.

So, a victory that shouldn’t have been so difficult to achieve. But in Senate committees with five members, one or two can really gum up the works.

The Thursday hearing was brief. There were two votes. The first was on an amendment to H.128 that would bar the defense at all phases of a criminal proceeding. The unamended version applied the ban only to the trial phase, still allowing for use of the defense at sentencing.

The amendment passed on a 3-2 vote, Sens. Joe Benning and Jeanette White voting “no.” Then the committee held a vote on the bill as amended, and that vote was unanimous.

The bill will almost certainly clear the full Senate with no trouble. But the committee dragged this out in a way that was hurtful to many. (Likely including Senate President Pro Tem Becca Balint, a member of the affected community.)

The final twists and turns in this useless saga came in a Wednesday committee hearing. Sen. Jeanette White, the most obnoxious of voices against the bill (and Balint’s district-mate), stayed resolutely silent. Her place in the rotation was taken by the previously silent Sen. Alice Nitka, who burped up a hypothetical that was uncomfortably reminiscent of the stuff that got White in trouble.

“What if someone gets close to you and puts their hand on your buttocks,” she said, stomping cluelessly into the briar patch. “You push them away, they fall and are hurt badly.” If the pusher is charged with assault, she wondered, would the defense be able to explain the circumstances?

Teh stoopid, it burns.

Assistant Attorney General David Scherr patiently explained that the ban applies only to a defendant’s state of mind, their motivation. Evidence about any actual conduct in the actual physical world would still be admissible.

Seriously, this bill was carefully and narrowly drafted to ban a specific defense argument — and in response to the often-successful use of the defense in ways that defeat justice and leave LGBTQ folk unprotected. Enough with the far-fetched hypotheticals that betray an ignorance of the bill’s content.

The other rationale for opposing the bill was Benning’s. He was okay with a ban during trials, but insisted there should be no limits on defense arguments at sentencing. His view was shared by Rebecca Turner of the Defender General’s office, who went so far as to question the bill’s constitutionality.

Okay, here’s the thing. If the concept is so bad, why did the American Bar Association officially call for limits on the defense eight years ago? And how did 12 states plus the District of Columbia enact similar bans and manage to escape constitutional challenges? And how did this bill sail through the House on a near-unanimous vote without these concerns getting any traction?

Before I wrap this up, I’ll address one other argument made by Benning and White. They argued that the proper safeguard against misuse of the gay-panic defense by a judge is the judicial retention process. Benning also noted that judges are subject to oversight by the Judicial Conduct Board.

There are two problems with this. First, a judge has to be outlandishly and repeatedly aberrant to be removed from the bench. And second, even if a judge is removed for, say, sentencing a murderer to probation, their removal does nothing for the victim. Justice remains unserved.

So the judicial retention and review processes are not an adequate safeguard. Want a real-world example?

Take Superior Court Judge Samuel Hoar. When he was up for reappointment in 2019, two women testified that Hoar was blatantly sexist and often engaged in degrading and condescending behavior toward women. They chronicled abusive behavior by Hoar, often bordering on physical violence.

Hoar was reappointed anyway. And the following year, he dismissed a lawsuit over disgustingly unsanitary conditions at the Vermont women’s prison. The plaintiff alleged that the prison showers “reeked of human waste and were infested with sewer flies, maggots and mold.” Hoar likened the conditions to showering in an outhouse — but he dismissed the suit anyway.

The retention process was an utter failure in Hoar’s case. He got away with abusive, sexist behavior, and remained on the bench where he could do further damage.

So I respectfully disagree with Benning, and disrespectfully disagree with White. And I’m glad that members of the Judiciary Committee will no longer be an obstruction to the bill’s passage — and that certain members will no longer have the opportunity to make fools of themselves in public.

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