The Washington Senate approved legislation Wednesday named after slain transgender teen Nikki Kuhnhausen to prevent so-called panic defenses.
House Bill 1687, also known as the Nikki Kuhnhausen Act, would block a defendant from using a defense based on discovery or disclosure of the victim’s actual or perceived gender identity or sexual orientation. The bill would prevent a claim of “diminished capacity” because the defendant did not fully comprehend the nature and gravity of the alleged crime.
The Senate approved the bill on a bipartisan 46-3 vote. Two of the three senators from Clark County, Democrat Annette Cleveland and Republican Lynda Wilson, both of Vancouver, voted for the bill. Republican Ann Rivers of La Center was one of three no votes.
Also voting no were Sens. Phil Fortunato, R-Auburn, and Mike Padden, R-Spokane Valley.
Rivers, in a short email to The Columbian, said she was persuaded by remarks made by Padden, a former Spokane County District Court judge, on the Senate floor.
“This bill, which was introduced several months ahead of Nikki Kuhnhausen’s disappearance, anticipates a situation that has never occurred in a court in our state and is unlikely to ever occur,” she said. “I think our judicial branch deserves more credit than this bill gives it.”
Kuhnhausen, 17, disappeared in early June. Her remains were discovered Dec. 7 after a human skull was found in the woods at Larch Mountain, southeast of Battle Ground.
David Y. Bogdanov of Vancouver has been charged with second-degree murder and malicious harassment, which is a hate crime in Washington. Authorities allege Bogdanov strangled the Vancouver teenager after learning she was transgender.
The Washington House approved HB 1687 by a 90-5 vote Feb. 12. All six representatives from Clark County — Democrats Sharon Wylie and Monica Stonier, Republicans Paul Harris, Larry Hoff, Vicki Kraft and Brandon Vick — supported the bill.
The legislation now goes to Gov. Jay Inslee.
Cleveland lauded the bill’s passage following Kuhnhausen’s “violent and abominable killing.”
“By all accounts, Nikki would be alive today if not for a homophobia-based assault on her life,” Cleveland said in a statement. “And, I suspect, so would others who have been similarly victimized.”
Lawmakers needed to act after Kuhnhausen’s death, she said.
“The terrible truth is that vicious assaults have been perpetrated against transgender people, as well as others in the LGBTQ community, for far too long,” Cleveland said. “This bill is a start. It is long overdue, and we must still do more.”
None of Clark County’s three senators spoke on the Senate floor before Wednesday’s vote.
Sen. Derek Stanford, D-Bothell, sponsored HB 1687 last year as a House member and was able to move it through the Senate after his appointment to that chamber in July.
“I believe that the policy in this bill is very simple,” Stanford said. “We’re just saying that learning someone’s sexual orientation or gender identity does not justify committing an act of violence against them.
“It’s strange that we would need a law to say this,” he added. “But we have seen this reasoning used as a defense to try to justify, mitigate or excuse the most horrendous acts of violence. And when that defense is used, it is a way of saying that those lives have no value.”
Padden, speaking on the Senate floor, said he agreed with all of Stanford’s remarks and briefly referenced Kuhnhausen’s case.
“No judge in this state has allowed jury instructions to allow a lousy diminished capacity defense like this one,” he said. “Diminished capacity defenses normally are due to a mental state of mind, not that somebody was surprised.”
Padden, while denouncing Kuhnhausen’s killing, said he isn’t sure the bill is necessary.
Sen. Jamie Pedersen, D-Seattle, agreed there is no record of a judge allowing such a defense in Washington.
“I am sorry to say that in other states, we have seen defense lawyers use these defenses, and in some cases successfully, in cases of attacks on LGBTQ people,” he said. “Then we had the very shocking and disheartening murder in Vancouver of a transgender woman named Nikki Kuhnhausen. And the idea that in our bubble of Washington it couldn’t happen seemed to come to a crashing end.
“I think it is the role of this Legislature, which establishes these statutory defenses, to draw a line in the sand and say definitively that no such defense is permissible in our state,” he said.
According to an article posted on the American Bar Association’s website, eight states — California, Connecticut, Hawaii, Illinois, Maine, Nevada, New York and Rhode Island — have legislatively banned the use of gay or transgender panic as a legal defense, as of July 1, 2019.
New Jersey became the ninth state to ban panic defenses on Jan. 21 when Gov. Phil Murphy signed legislation that was unanimously approved by the state assembly and senate.
