An Act to renumber and amend 971.15 (2); to create 939.44 (3), 939.48 (5m) and 971.15 (2) (b) of the statutes; Relating to: eliminating criminal defenses of adequate provocation, self-defense, or not guilty by reason of mental disease or defect if the claim is based on the victimâs gender identity or sexual orientation.
AB361 would change Wisconsin criminal law to bar certain defenses when a defendant’s claim is based on the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation. Specifically, the bill would make provocation unavailable as a mitigation defense, prohibit self-defense claims based on those facts, and exclude from the definition of “mental disease or defect” any state brought on by discovery of, knowledge about, or potential disclosure of a person’s gender identity or sexual orientation. The bill also covers situations involving a romantic or sexual advance, or where the defendant and victim had a dating or romantic/sexual relationship, so long as there was no use or threat of force or violence by the victim.
In practical terms, the bill would amend and create provisions in chapters 939 and 971 of the Wisconsin statutes governing criminal responsibility and homicide-related defenses. It would narrow the circumstances in which defendants can reduce or avoid criminal liability by arguing adequate provocation, self-defense, or not guilty by reason of mental disease or defect when the underlying trigger is tied to a victim’s LGBTQ+ identity or expression. The bill applies only to offenses committed on or after its effective date.
The general sentiment reflected in the bill’s introduction is supportive of limiting so-called “panic” defenses in cases involving gender identity or sexual orientation, with a large bipartisan-looking coalition of Assembly authors and Senate cosponsors. However, no committee transcript or recorded vote information is provided, so there is no direct evidence in the materials of debate, amendments, or opposition arguments. The bill ultimately failed to pass pursuant to Senate Joint Resolution 1.
The main point of contention inherent in the proposal is whether the state should categorically remove these defenses in cases involving LGBTQ+ identity-related facts, even where a defendant claims emotional disturbance, fear, or self-defense. Supporters would likely view the bill as preventing discriminatory violence defenses and protecting LGBTQ+ people from being blamed for their own victimization, while critics might argue it restricts traditional criminal defenses and could limit individualized consideration of a defendant’s mental state or perception of threat. Because no discussion transcript is available, the record does not show which concerns were actually raised in committee or on the floor.
AB361 would amend Wisconsin’s criminal code by creating new statutory exclusions in the provocation, self-defense, and mental disease or defect provisions. It would affect defendants charged with crimes where the asserted defense arises from the victim’s gender identity, gender expression, sexual orientation, or related romantic/sexual interactions, and would limit the availability of those defenses in such cases. The bill would also update chapter 971’s insanity-related definition of mental disease or defect and apply prospectively only to offenses committed on or after the effective date.
The bill appears to have been introduced with strong sponsor support and a policy goal of restricting discriminatory or so-called panic-based defenses in criminal cases involving LGBTQ+ victims. The available record does not include committee testimony or vote tallies, so there is no documented floor or committee sentiment beyond the broad bipartisan authorship. The bill’s final status indicates it did not become law, failing to pass pursuant to Senate Joint Resolution 1.
The central controversy is the bill’s categorical removal of provocation, self-defense, and insanity-style defenses when the trigger is the victim’s gender identity or sexual orientation. Supporters are likely to argue that these defenses have been misused to excuse violence against LGBTQ+ people and that the bill closes that loophole. Opponents, if any, would likely focus on the breadth of the restriction, especially its effect on self-defense claims and on defendants who say they acted under emotional disturbance or mental impairment. The bill text also raises questions about how courts would distinguish identity-based triggers from other facts in cases involving dating relationships or romantic advances.