Post submitted by David McCabe, HRC Digital Media Intern
A committee of the American Bar Association (ABA), the national organization representing attorneys, has passed a resolution that would make it harder for defense lawyers to use the sexual orientation or gender identity of their client’s accuser against them in court – in what the organization that drafted it hopes will mark the beginning of the end of the so-called gay and transgender panic defenses. To become official ABA policy, the organization’s House of Delegates will have to approve it at their yearly meeting in August.
The resolution, which was developed and written by the National LGBT Bar Association, would adjust guidelines for lawyers, judges and juries to limit the use of a tactic infamously considered by those defending Matthew Shepherd’s killers nearly 15 years ago. A gay or transgender panic defense argues that a defendant’s assault against an LGBT individual should be excused or classified as a lesser charge because the revelation of the victim’s sexual orientation or gender identity caused them to lose control and turn violent.
“We must protect the LGBT community by refusing to allow defendants to use a victim’s sexual orientation or gender identity to justify their heinous crimes,” executive director of the LGBT Bar D’Arcy Kemnitz said in a statement.
In 2004, a defense lawyer for one of the men accused of killing transgender teenager Gwen Araujo argued that his client had killed her upon becoming enraged when he learned that Araujo, with whom the accused had previously engaged in a sexual relationship, was transgender. He was later convicted and sentenced to 15 years to life in prison for murder, rather than the lesser charge of manslaughter his defense team sought, but not before the first hearing ended in a mistrial. Governor Arnold Schwarzenegger signed the Gwen Araujo Justice for Victims Act into law in 2006, allowing parties in a trial to request that the jury not let bias against a victim's sexual orientation, gender identity, or other protected status influence their decision.
That law was tested by the defense in the trial of Brandon McInerney, who shot his gay classmate Larry King twice while at school. Prosecutors used the Araujo law to ask the jury not to consider King’s sexual orientation in their deliberations. The first trial ended in a mistrial, though there were other factors at play – McInerney was being tried as an adult and he had been 14 when the shooting occurred.
If the ABA’s full House of Delegates approves of the resolution in August, judges, juries and attorneys all around the country would receive training on how best to mitigate the impact of a victim’s sexual orientation or gender identity on a trial.