The American Bar Association (ABA) has formally voted to explicitly declare that the so-called gay or trans “panic defense” should not be used during prosecutions. What does this mean, and what work is still to be done?
This week, the ABA House of Delegates passed by unanimous vote a resolution that urges federal and state lawmakers as well as local governments to pass measures against the use of the gay or trans panic defense by criminal defendants.
The gay or trans panic defense attempts to establish that the defendant was so overcome by emotional repulsion, hatred or fear upon finding out their victim was gay or trans that they temporarily lost their mind and in a blind panic assaulted or even killed their victim.
The resolution states:
That the American Bar Association urges federal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.
The gay panic defense was infamously tried in the 1998 Matthew Shepard trial, where 21 year-old Matthew Shepard died as a result of being beaten so severely by two men, Aaron McKinney and Russell Henderson, that he never regained consciousness.
McKinney’s lawyers attempted to establish that, drug-addled, McKinney had gone into a rage over Shepard supposedly making sexual advances and, sparked by past abuse, assaulted Shepard and then left him for dead. They argued McKinney was not wholly responsible for his actions and therefore should receive a lesser punishment. Judge Barton Voigt who presided over the case refused to allow this strategy, but not for reasons related to the strategy’s offensive nature.
As previously noted, the gay panic defense was also floated in February of this year following the murder of openly gay Mississippi mayoral candidate Marco McMillian.
The so-called trans panic defense continues to feature prominently in cases surrounding the assault or murder of trans women. The 2004-2005 California trial relating to the homicide case of Gwen Araujo is widely held to have been affected by the trans panic defense.
Therefore the ABA’s resolution is highly significant and not just a symbolic gesture. In order to enforce this, however, the ABA recommends legislation and regulation to specifically put an end to the LGBT panic defense.
The resolution passed by the ABA House of Delegates says that legislation should:
(a) [Require] courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and
(b) [Specify] that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.
To be absolutely clear, and to directly address accusations from the Religious Right, this does not give special status to LGBT victims but instead says that their LGBT identity can no longer be used (and should never have been used) as a partial or complete justification for a crime.
The National LGBT Bar Association originally presented this motion before Delegates and has long campaigned for formal action against the LGBT panic defense.
Executive Director D’Arcy Kemnitz is quoted as saying that, “The ABA’s adoption of this measure sends a clear message to state legislatures that legal professionals find no validity in the sham defenses mounted by those who seek to perpetuate discrimination and stereotypes as an excuse for violence. Too many people have hidden for far too long behind baseless ‘panic’ defenses.”
He added, “Judges, lawmakers and juries must demand that these practices come to an end and juries must be provided with instructions advising juries to make their decisions free of improper bias and prejudice. Today’s ABA resolution is an important first step towards realizing that goal.”
Some states, such as California, have already acted to discourage the defense through existing nondiscrimination laws. Still, it will take a concerted effort from all states and the federal government to ensure this awful artifact and testament to discrimination is finally consigned to the history books.
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