Legislature bans ‘surprise’ defense in LGBTQ attacks

OLYMPIA – A person charged with attacking or killing an LGBTQ victim won’t be able to argue they are not guilty because they were so “surprised” to learn of the victim’s sexual orientation or identity that they aren’t responsible for the crime.

With an overwhelming 46-3 vote this week, the Senate passed and sent to Gov. Jay Inslee a bill that says a defendant can’t legally justify violence against someone by claiming that learning the person’s sexual orientation temporarily reduced their mental ability to realize they were committing a crime.

The legislation was prompted by the alleged murder of a transgender woman from Vancouver, Nikki Kuhnhausen. The person charged in the murder, David Bogdanov, has denied killing her but hasn’t claimed the “surprise” defense at this point.

Sen. Mike Padden, R-Spokane Valley, argued the new law isn’t needed.

“No judge in this state has allowed a jury instruction to allow a lousy diminished capacity defense like this one,” Padden said. “It’s never an excuse to kill somebody because you’re surprised about some fact about them.”

Senate Law and Justice Committee Chairman Jamie Pedersen, D-Seattle, said he didn’t view the law as a priority under the theory of “it can’t happen here.” But the defense has been used successfully in other states, and the Kuhnhausen case convinced him that “the idea that our bubble of Washington, that it couldn’t happen came to a crashing end.”

Although Padden is right that no judge has allowed such an instruction to be given to a jury, it’s the role of the Legislature to establish what defenses are permitted, Pedersen said. It should “draw a line in the sand,” he added, and ban the use of a diminished capacity surprise defense in cases involving attacks on people based on their sexual orientation or gender identity.