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to Section One | to Arts & Entertainment
posted Friday, August,16 2013 - Volume 41 Issue 33
Limit 'Gay panic' defense, ABA urges
Section One
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Limit 'Gay panic' defense, ABA urges

by Mike Andrew - SGN Staff Writer

The American Bar Association is urging federal, state, local, and territorial governments to limit the availability and effectiveness of so-called 'Gay panic' and 'Trans panic' defenses by criminal defendants.

'These defense strategies seek to excuse the crimes by saying that the victim's sexual orientation caused their assailant's violent reaction to them,' read the lawyers' group's resolution, passed by the House of Delegates August 12 and posted on the ABA's website.

'The ABA recommends that courts, when asked, instruct juries to ignore the victim's gender or sexual orientation in its deliberations; it also recommends that laws might ban any use of such defenses in noncapital cases,' the statement continues.

The resolution was sponsored by ABA sections of Criminal Justice and of Individual Rights and Responsibilities; the Young Lawyers Division; the Center for Human Rights; and the commissions on Sexual Orientation and Gender Identity, Youth at Risk, Racial and Ethnic Diversity, and Domestic and Sexual Violence.

GETTING AWAY WITH MURDER
D'Arcy Kemnitz, executive director of the National LGBT Bar Association, was granted floor privilege to speak on the issue before the vote.

Kemnitz detailed several brutal assaults and murders of young people whose assailants used Gay panic defenses to claim their acts were reasonable.

Such defenses, she said, are 'surprisingly long-lived historical artifacts' from a time when widespread antipathy was the norm. Kemnitz added that these defenses represent 'the notion that LGBT lives are worth less than other lives.'

For example, 'Gay panic' is being used to justify the brutal murder of openly Gay Clarksdale, Mississippi, mayoral candidate Marco McMillian earlier this year.

The 'Gay panic' defense was also used by Brandon McInerney to justify shooting openly Gay 14-year-old student Lawrence King twice in the head with a .22-caliber handgun. McInerney was sentenced to 21 years in prison for the second-degree 2008 murder.

'Trans panic' was claimed by Juan José Martinez Matos, who was convicted of the murder of Gay Puerto Rican teen Jorge Steven Lopez Mercado in 2010. Lopez had been wearing drag, Martinez said, and when he discovered that his victim was a boy, he became angry and lost control of his actions.

EXPLOITING STEREOTYPES
Legally, 'Gay panic' falls under the category of 'diminished capacity' or possibly 'temporary insanity' defenses, according to an article by law professor Cynthia Lee in the 2008 UC Davis Law Review. But, Lee adds, the defense taps into pre-existing prejudice against LGBT persons.

'There is no question that when murder defendants argue Gay panic, they seek to tap into deep-seated biases against and stereotypes about Gay men as deviant sexual predators who pose a threat to innocent young heterosexual males,' Lee wrote.

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