California Says Yes to Banning the Gay and Trans Panic Defense
California’s state Assembly approved a bill on Wednesday that would ban attorneys from using the gay or trans panic defense to lessen the sentence of violent criminals who’ve murdered LGBT people.
While blatant use of the gay or trans panic defense is rare today, the defense can use “heat of passion” and “sudden quarrel” defenses for which evidence of provocation must be provided. One factor that is still accepted as a legitimate motivation is discovery of a person’s sexual orientation or gender identity — for instance, this would allow for a murder charge to be downgraded from murder to manslaughter. Most often today, the defense is used to try to lessen the sentences of people who have murdered trans people, reinforcing institutionalized transphobia and communicating that, in the eyes of the law, trans lives are worth less than those whose gender and birth-assigned sex align.
High profiled cases include the 2002 murder of 17-year-old Gwen Araujo who was beaten and strangled by four men in Newark, California. During the two subsequent trials, the defendants claimed they had “panicked” when they learned that Araujo was trans. While ultimately two of the men were convicted, they received sentences of manslaughter and no hate crimes charges were added even though today it seems clear the crime was motivated by anti-trans prejudice.
Rick Zbur, executive director-elect of EQCA, which has campaigned for the bill, says that the panic defense is a relic that should have been stripped from California law a long time ago. “This defense legitimizes prejudice and hate, and it should play absolutely no part in California’s justice system,” Zbur is quoted as saying. “This bill helps eliminate anti-LGBT bias as a ‘reasonable’ basis to ease the punishment for violent crimes against LGBT people.”
Assemblywoman Susan A. Bonilla, lead sponsor of the bill, adds that, ”There is absolutely no justification for the use of ‘panic defenses.’ Clearly this tactic has been utilized by defendants, unjustly targeting members of the LGBT community, based on damaging stereotypes. With AB 2501, we are moving forward to ensure equality in our courts and making it very clear that discrimination against the LGBT community is intolerable and unacceptable.”
Earlier this year, the ABA adopted a policy against the use of the gay or trans panic defense in which it made it clear that no attorney should attempt to use such a defense in order to get a client a lesser sentence. This isn’t technically binding, though the ABA can censure those who break the rule, but formed part of a call for lawmakers to make changes to state laws to ensure that the so-called defense can’t be lawfully used.
It’s also worth pointing out that the gay or trans panic defense has never had any scientific support, or to put it another way, there is no recognized psychological phenomenon that of itself would mitigate a violent, murderous outburst solely on grounds of discovering a person’s sexual orientation or gender identity.
While the no votes on the Assembly bill, and its senate counterpart, came from Republicans, the bill has overwhelming bipartisan support and so shouldn’t be a controversial one for Governor Brown to sign — as Brown is a noteworthy LGBT-rights supporter it’s unlikely he will refuse to add his signature. Indeed, among those few who do oppose the legislation there seems to be an agenda at work that isn’t specifically about this legislation but rather one that seeks to prevent other gay and, in particular, trans-inclusive legislation from passing, such as the streamlining of California’s birth certificate amendment process, a piece of legislation designed to help trans people update their gender markers more quickly.
When Governor Brown signs the legislation it will make California the first state in the United States to specifically ban the gay and trans panic defense. It’s hoped that, just as with the ex-gay therapy on minors ban, this law could be the inspiration for other states to attempt to outlaw the panic defense, particularly as the legislation has proved largely uncontroversial even among religious conservative circles.
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