Being gay or trans does not justify murder or assault.
It may sound like this should go without saying, but the American Bar Association (ABA) is having to do just that as it aims to repeal a scummy legal move that too many times has traded on anti-LGBT prejudice to reduce violent crime sentences.
The ABA recently introduced and is now advancing a resolution that would mean an end to the so-called gay or trans “panic defense.”
“This resolution puts an end to a longstanding injustice in our legal system and gives a voice to countless lesbian, gay, bisexual and transgender victims of violence, a voice we never hear because they are no longer here to speak for themselves,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association, in a statement on the resolution.
The gay or trans panic defense asks a jury to sincerely believe that the defendant flew into a blind rage when confronted by the victim’s LGBT identity and therefore was not entirely or even at all responsible for their actions.
It’s as paper thin as it sounds, and yet the gay and trans panic defense has a long, ugly history.
Most notably, the gay panic defense featured in the 1998 Matthew Shepard trial.
21-year-old college student Matthew Shepard was beaten so severely by two men, Aaron McKinney and Russell Henderson, and then lashed to a fence-post in the Wyoming hills, that he never regained consciousness.
Lawyers acting on behalf of McKinney attempted to advance that their client, under the influence of drugs, had gone into a rage because Shepard had made an advance and that, for McKinney, had triggered memories of a childhood assault.
The judge in the case, Judge Barton Voigt, barred this strategy for other legal reasons not directly related to the strategy’s offensive nature.
In case you were to think that this is just some historical remnant, the so-called gay panic defense was also used in February of this year in the trial concerning the murder of openly gay Mississippi mayoral candidate Marco McMillian.
Lawrence Reed, who has freely admitted killing McMillian, is believed to be considering using the gay panic defense to allege that McMillian had attempted unwanted advances that, the line goes, provoked Reed into killing McMillian in self-defense.
Admittedly, uses of the gay panic defense are rarer now, but when it comes to the violent murder of members of the trans community, some version of the panic defense is still often cited.
Among the most glaring examples is the case of the 2004-2005 California trial surrounding the homicide case of Gwen Araujo.
Teenager Gwen Araujo was murdered in Newark, California by four men after they discovered she was trans. They claimed that this discovery, and the fact that two of them are believed to have had a sexual relationship with Araujo, provoked them into a blind rage in which they strangled and killed her.
They argued that they could not be held accountable for first degree murder because of their heightened emotional state.
The first trial resulted in a jury deadlock.When it came to the second, defendants Mike Magidson and Jose Merel were convicted of second-degree murder. Another of the accused, Jason Cazares, later entered a plea of no contest to charges of voluntary manslaughter.
It is widely held that there was enough evidence for first-degree murder and that the trans panic defense had grossly affected the outcome.
More recent cases where the trans panic defense has been used includes the brutal murder of Angie Zapata in 2008, where just a smile from Zapata was apparently enough for Allen Andrade to snap and repeatedly bludgeon her with a fire extinguisher.
The National LGBT Bar Association helped develop the repeal resolution in order to stop further injustices, and this is the culmination of around 15 years work.
The resolution will also call for training and instruction to help attorneys and judges, as well as juries to recognize and reject the so-called panic defense.
The ABA House of Delegates will take up the resolution at the 2013 ABA Annual Meeting this August and will need to vote on it for the recommendations to become official ABA policy. The resolution, as it stands, has wide support and has a good chance of passing.
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