Lawyers’ Group to Vote on ’Gay Panic’ Defense

by Seth Hemmelgarn

Bay Area Reporter

Friday August 9, 2013

Members of the American Bar Association will vote on a proposal to take an official stance on gay and trans panic defenses next week as the lawyers' group holds its annual convention in San Francisco.

Resolution 113A "urges 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 on the grounds that the victim's sexual orientation or gender identity is to blame for the defendant's violent reaction," the lawyers' association's website says. If the resolution passes, it will become ABA policy.

The ABA's House of Delegates, which is the organization's policymaking body, will meet August 12-13 to vote on resolutions and discuss other matters.

"In every situation where there is a gay panic defense, it gives the lawyers facing that the power of the ABA to indicate we don't believe this is a viable defense," ABA President Laurel Bellows said in an interview Tuesday, August 6.

The organization could use the policy to encourage courts to instruct jurors not to allow the sexual orientation or gender identity of victims, witnesses, or others to bias their decisions. Bellows said no opposition to the resolution had been presented yet, but "we encourage debate."

The proposal needs a simple majority - 50 percent plus one vote - to pass. There are 560 total members in the ABA House of Delegates, so for 113A to pass, it will need at least 281 votes. The resolution's primary sponsor is the ABA's Criminal Justice Section.

Locally, the 2002 murder of transgender teen Gwen Araujo, 17, brought attention to trans panic defense tactics. Araujo reportedly engaged in anal and/or oral sex with Michael Magidson, Jose Merel, and his brother Paul Merel, who didn't participate in the killing. Magidson and Merel claimed that the discovery of Araujo's birth gender had threatened their sexualities and self-images.

Family members, the prosecution, and supporters spent countless hours over numerous months combating the transphobic rhetoric and blame-the-victim mentality that was allowed in court.

Even as the coroner's office was testifying about the multiple causes of Araujo's death and her bruised and bloodied body, defense attorney Tony Serra's questions remained focused on the length of Araujo's skirt. (As of October, Magidson and Merel were both serving prison sentences of 15 years to life after being convicted of second-degree murder in the case, in which others were also charged.)

In July 2006, state Attorney General Kamala Harris, who was then San Francisco's district attorney, convened a national conference on combating gay and transgender panic defense strategies.

Months later, Assembly Bill 1160, which was known as the Gwen Araujo Justice for Victims Act, became law in California. The law allows a judge to instruct jurors not to consider their own anti-LGBT biases during their deliberations.

In response to emailed questions this week, out lesbian attorney D'Arcy Kemnitz said, "As the executive director of the National LGBT Bar Association, I'm not only a strong supporter of the resolution, but had the honor of helping to draft the language." Kemnitz said she'd be presenting the resolution for a vote to the House of Delegates.

She said that she and other LGBT bar members expect "that the resolution will receive overwhelming support among the House of Delegates because this is an issue that impacts not just LGBT people, but our family and friends as well. 'Gay panic' and 'trans panic' defenses have a shameful history. They were used as excuses in the trials of those who murdered Matthew Shepard and Gwen Araujo."

Shepard, a gay Wyoming teen, was murdered in 1998.

"We expect it may become an issue in the upcoming trial of Lawrence Reed," who's accused in the killing of openly gay Clarksdale, Mississippi mayoral candidate Marco McMillian, said Kemnitz.

She said she's "confident" 113A will win approval, "sending a strong message to state legislatures, and our courts, that the legal profession wants to see a swift end to the practice of using bias and hate as an excuse for violence and murder."

Among other noteworthy events, former Secretary of State Hillary Rodham Clinton, who will accept the ABA Medal, the association's highest honor, is set to speak August 12.

Like other conference events, Clinton's speech is not open to the public. The annual meeting runs from Thursday, August 8 through Tuesday, August 13.

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