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LGBTQ

Being Freaked Out by Gay and Trans People Is Still a Legal Murder Defence in 48 US States

Illinois is set to become the second state to outlaw gender and sexuality as motives for violence by defendants in court. What's holding the others behind?

Mathew Foresta

A friend holds a photo of Gwen Araujo during a wake in 2002. AP Photo/Marcio Jose Sanchez

In 2002, Gwen Araujo, a transgender woman, was brutally beaten to death at a house party in Newark, California by a group of men. The attack came after two of them, who had earlier had sexual relations with her, discovered she was a transgender woman.

Her case is striking not only for the lurid nature of her murder but for the fact that at trial, defendants tried to invoke a trans panic defense, a rare but indisputably toxic legal strategy. Similar in form to gay panic defenses, they seek to pin blame for violence and assault on one's sexual orientation or gender identity. Though not often successful—two juries rejected its use by Araujo's killers—they are troubling for the fact that in most states they're allowable at all.

In 2013, the American Bar Association (ABA) released a resolution calling for federal, state and local governments to pass legislation curtailing their use; the following year, California became the first state to ban them, partly due to the advocacy of Araujo's mother, Sylvia. Last week, Illinois passed a bill banning the defense, which Governor Bruce Rauner has indicated he will sign; it will become only the second state to do so.

While more than applause-worthy, it's worrying that a vast majority of states have yet to ban a legal defense that uses one's gender or sexual identity to justify violence. More worryingly, a handful of states besides California and Illinois that have recently tried to ban these defenses have failed—and though legislation is in progress in others, bills that haven't passed are a case study in the bureaucratic red tape that can bog down what should be all but an open-and-shut effort.

In 2015, lawmakers in both New Jersey and Pennsylvania introduced efforts to ban the use of panic defenses; both efforts eventually died in committee. Pennsylvania representative Michael Schlossberg, who introduced his state's legislation, said his state's bill faced death by backburner in the state's judiciary committee.

"How in God's name could [panic defenses] be real in the 21st century?" he said. "We introduced [our bill] late, and there wasn't an interest, unfortunately," he added.

Schlossberg isn't deterred, and said he's considering reintroducing the state's bill at a later date. New Jersey lawmakers haven't given up either, having carried over their bill into the current legislative session, where it now sits again with the judiciary committee.

In the District of Columbia, the "Secure a Fair and Equitable Trial Act of 2017," which seeks limits on the use of panic defenses, was introduced this February, where it now also sits under review by a judiciary committee. DC councilmember David Grosso, who helped introduce the legislation, said he fears it could run into the same problems that have plagued similar bills elsewhere.

"At this point, it's just bureaucracy and time that's the opposition to legislation like this," he said.

Former California State Assembly member Susan Bonilla, who introduced California's bill banning panic defenses, noted that their effort did pass by a wide margin, but faced opposition in the state's Committee on Public Safety because "the consultants to that committee at the time tended to be former public defenders." Adding, "They had raised concerns that by banning panic defenses, defendants would be denied a complete and fully-rigorous defense.

But the ABA's resolution against them contends that "the defense has no medical or psychological basis," and their use "to make a case for either insanity or diminished capacity is inappropriate," since homosexual panic disorder—what was once thought by psychiatrists to be a panic brought on by perversion—is no longer recognized by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

"Gay and trans panic defenses are used with much more frequency than most people think," said D'Arcy Kemnitz, Executive Director of the National LGBT Bar Association, which helped put forward the ABA resolution. "This, however, misses the point of the ABA resolution and numerous pieces of legislation throughout the country: any use of these defenses are unacceptable."

Recent cases have shown that the defense can be used effectively, sometimes to help mitigate sentencing, such as that of the murder of Larry King, an openly gay 15-year-old Oxnard, California student who was shot by classmate Brandon McInerney in 2008.

Lawyers for McInerney said he had felt "threatened" by King, who sometimes wore makeup and high heels to school, and that King had "returned taunts from him and other boys with sexual overtures and declarations of love," according to the Los Angeles Times. Prosecutors would later contend that King hadn't harassed McInerney, claiming that McInerney was guilty of "teasing the effeminate King for weeks and vowing to 'get a gun and shoot' him."

According to prosecutors, McInerney's lawyers invoked a gay panic defense, claiming that King's sexual jeers were to blame for the shooting. The 2011 trial ultimately ended in a hung jury; later that year, McInerney accepted 21 years in prison in exchange for pleading guilty before another could begin.

Though other legal and social LGBTQ issues have rightfully come to the fore, from transgender bathroom bills to intersectional approaches in community policing, banning these defenses is crucial in sending a clear message to the LGBTQ community that homophobia and transphobia can't be used to justify violence against them.

"I believe that everybody's human rights should be protected," said Grosso. "A person just being who they are causes them to be beaten up? That shouldn't be used in any sense, in any way, as a defense."

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