Prosecutors Seek to Limit Gay Panic Defenses

Prosecutors announced Thursday they want to deter the use of “gay panic” defenses in cases of violent crimes. Currently, legislators in California and New York are considering measures to limit the typical courtroom tactic of making a victim's sexual orientation the key element in criminal defense.

What is “gay panic” defense?

“Gay panic” defense refers to a defendants attempt to justify their crimes based on anger or fear over their victims' sexual orientation.

“The suggestion that criminal conduct is mitigated by bias or prejudice in inappropriate,” said San Francisco District Attorney Kamala Harris, who conducted a national conference on the gay defense issue. “We can't outlaw it, but we can combat it.”

Measures to limit gay panic defense

New bills considered by California and New York would require judges to remind trial jurors that their own biases toward their victim cannot sway their deliberations. The California bill would also inform jurors that gay panic defenses are contradictory with state laws, which protect gays, lesbians, and transgenders against discrimination.

These laws were prompted after the brutal murder of a 17-year-old transgender in 2002. Gwen Araujo was beaten and choked after two men she'd slept with discovered she was biologically male.

The defense attorneys attempted to justify their client's actions claiming their rage at finding out the truth about Araujo's sex triggered the crime.

However, Alameda County Assistant District Attorney Chris Lamiero said that Gwen's sexual orientation was not meant to be provocative. It was who she was. “I would not further ignore the reality that Gwen made some decisions in her relation with these defendants that were impossible to defend,” Lamiero said. “I don't think most jurors are going to think it's OK to engage someone in sexual activity knowing they assume you have one sexual anatomy when you don't.”

Many defense lawyers agree that the gay panic defense issue is too complex to be legislated. Some conference participants suggested various strategies for deterring defense arguments that have a negative impact on public outlook toward homosexuality.

Angela Harris, professor at the University of California, Berkeley's Boalt Hall School of Law, claims that legislation may be a little helpful, but panic defenses would begin to naturally lose their efficacy as gays are more accepted by society.

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