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Assemblyman Tim Eustace (D-Bergen), shown in this file photo, has introduced a bill that would prohibit the use of the "gay panic" defense in murder cases

(Tony Kurdzuk/The Star-Ledger)

TRENTON — It's called the "gay panic" defense.



A straight person charged with murder argues for a manslaughter charge instead because he became so enraged at being hit on by someone of the same gender – or a transsexual person – that he entered into a state of temporary insanity.



The defense has been used, with varying measures of success, in several states. And even though it's unclear if it's ever been used in New Jersey, Assemblyman Tim Eustace (D-Bergen) last week introduced a bill to prohibit it.



"I want to make sure that we're paying attention to things before they happen," said Eustace, who is the Legislature's second openly gay member.



Under New Jersey law, a defendant can be charged with manslaughter – a lesser charge than murder – if, among other things, the crime "is committed in the heat of passion resulting from a reasonable provocation."



Eustace's bill states that that a provocation can not be interpreted as reasonable if it is based on "the discovery of, knowledge about, or potential disclosure of the homicide victim's actual or perceived gender identity or expression," including "circumstances in which the victim made an unwanted, non-forcible romantic or sexual advance toward the actor, or if the victim and actor dated or had a romantic or sexual relationship."



New Jersey would not be the first state to ban such defenses if the bill becomes law. California Gov. Jerry Brown signed a similar bill in September.



California saw two of the most high profile "gay panic" defenses in recent memory. In 2011, lawyers for defendant Brandon McInerney argued that he gunned down Larry King — when they were ages 14 and 15, respectively — because McInerney was so humilitated by King's advances.



In 2002, attorneys for California men who who took part in beating to death a 17-year-old Gwen Araujo made a similar argument, since two of the men had sexual contact with Araujo before they learned she was biologically a man.



Both cases first ended in mistrials. McInerney later pleaded guilty to manslaughter with a firearm. Two of the men who killed Araujo were eventually convicted of second-degree murder, while two others pleaded guilty to lesser crimes.



The defense was less successful in the trial for the 1998 murder of Wyoming College student Matthew Shepard, when one of his killer's attempted to use it.



The defense is rooted in century-old theories about homosexuality as a mental disorder, and the term "homosexual panic" was coined by psychiatrist Edward Kempf in 1920. The gay rights group Equlaity California told the Los Angeles Times in 2011 that the defense has been employed in at least 45 cases nationwide.



Asked why he introduced the bill, Eustace said that "at the end of every year, I try to review some of the things I think need to be done"



"It is a recognized defense and it does have precedence," he said.



The American Bar Association in 2013 passed a resolution urging governments at all levels to restrict the use of the defense at the urging of the National LGBT Bar Association.

"Based upon the initial language of the gay/trans so-called "panic" defense bill, the LGBT Bar is pleased to support it," said its executive director, D'Arcy Kemnitz. "We look forward to working with New Jersey's elected representatives to pass this important protection for LGBT victims and their families as quickly as possible."



Joe Hayden, a prominent defense attorney, said he's never heard of a defendant in New Jersey using the gay panic defense. But he opposes anything that would make a potential defense off limits.



"I do not believe it is widely used. But I am against any provision which would eliminate the ability of a defendant to argue that a murder charge should be considered as manslaughter because of the surrounding circumstances," he said. "Juries are smart enough and have the common sense to differentiate between a reasonable, valid fear and a bogus defense. And we should not eliminate defenses when there's no precedent for their misuse."



New Jersey gay rights activist Steven Goldstein said the bill "has merit."



"I would caution anyone to say that this is a solution in search of a problem," he said. "We as a society should be far more progressive than waiting for tragedies to occur before we respond. Clearly in parts of the country this has been a problem. New Jersey should be a leader."

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Matt Friedman may be reached at mfriedman@njadvancemedia.com. Follow him on Twitter @MattFriedmanSL. Find NJ.com on Facebook.