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The First Step: Ending the Use of Gay and Trans Panic Defenses

JURIST Guest Columnist D'Arcy Kemnitz, Executive Director of the National LGBT Bar Association discusses reasons why the "gay panic" defense should be outlawed...

Just over a year ago, barely a dozen states recognized lesbian and gay marriages. Today, following a sea of change spurred on by rapidly evolving public opinion and a US Supreme Court that has permitted marriage recognition to grow, a majority of the US now provides the rights and benefits of marriage to couples both gay and straight.

This rapid extension of a fundamental legal protection to lesbian and gay Americans has left many people, including many within the lesbian, gay, bisexual and transgender (LGBT) community, feeling as if equality for LGBT families is sweeping the nation. In some ways, it is. In many other ways, however, LGBT people continue to face unspeakable discrimination.

As of this writing, one of the eleven or so states not yet extending marriage to same-sex couples is Mississippi. It, along with many of its neighbors in the deep south, continues to be not just an unequal place to live, but in many respects, a dangerous place, too. While couples across the country celebrate their unions, LGBT people in Mississippi have a justifiable fear for their lives.

In 2013, Marco McMillan, a candidate for mayor of Clarksdale, Mississippi, was murdered. McMillan, who was a trailblazing, openly gay political candidate in a region of the country where there are few such pioneers, was killed in an apparent homicide. In February of this year, a grand jury indicated Lawrence Reed, though a trial date has not yet been set.

When Reed's trial does begin, however, it is entirely plausible that jurors will be told the defendant murdered McMillian simply because he was gay. Following his arrest, Reed allegedly told police he killed McMillan because the Mississippi mayoral candidate made an advance toward him. In Reed's mind, this justified McMillan's murder.

It's a strategy known as the "gay and trans panic" defense, and it has been used by perpetrators of violence against LGBT people from Matthew Shepard to Marco McMillan. In 49 of our 50 states, its use is perfectly legal.

Just weeks ago, California became the first, and only, state to make use of the so-called "panic" defense illegal. Legislation signed into law by Governor Jerry Brown prohibits defendants from even attempting to convince a jury that a victim's sexual orientation is justifiable grounds for murder.

It's a significant step forward, but we're only 1/50 of the way done.

Last year, the LGBT Bar, introduced a resolution [PDF] at the annual meeting of the American Bar Association (ABA), calling on all states to outlaw the use of this reprehensible "defense." The delegates of the ABA—who represent every red and blue corner of the country and every judicial philosophy from Scalia to Ginsburg—approved our resolution without dissent. Legal professionals, regardless of their ideological leanings, understand it is never acceptable to defend violence based on who a victim is.

To most people, this will seem like a no-brainer. Indeed, in our outreach work, the LGBT Bar has found that most people do not even realize such a "defense" is permissible in any court. Yet the list of hate crimes in which perpetrators are employing its use is growing. The "panic" defense has been used, in some form, to justify the murder of Gwen Araujo, a transgender woman murdered in California; the in-school attack against Larry King; an attack on two transgender women using Atlanta's public transit system; and the now infamous murder of Wyoming college student Matthew Shepard.

Despite the advancement of legal protections for our relationships, these cases underscore that, for too many people, there is too little protection for our lives.

That's why the LGBT Bar is working to replicate our advances in California across the country. By working with state attorneys general and state legislators, we know we can put an end to this unconscionable courtroom tactic. Even before other laws are passed, however, judges have a clear choice, as exemplified by the ABA. They can—and should—instruct juries to disregard any use of the "panic" defense. It would dishonor the memory of victims to even silently imply that being an LGBT person is sufficient means for violence or murder.

Until more states follow California's lead, the use of this deplorable legal tactic is likely to continue unabated.

Indeed, just this past July, another perpetrator raised the likelihood that they, too, would hide behind such a cowardly defense. A relative of the suspect in the shooting of Tiffany Edwards, a transgender woman in Cincinnati, told local media that the person accused in Edwards's attack "gets an attitude" about gay or transgender people "trying to hit on" him. The message was clear: The shooter thought it was perfectly fine to fire a gun at someone because he didn't like her gender identity.

As a lawyer, I am outraged by the idea that anyone would justify violence because of prejudice. As a mother, I am furious that anyone's child—at any age—could be the target of such tactics. Marco McMillian left behind grieving parents who lost their only child. Every parent should be moved to action by his story.

Our country has rightly said that no one should be targeted for violence because of their gender, ethnicity or religious beliefs. It is past time we added the same protection for those targeted because of their sexual orientation or gender identity.

That work, however, will not be easy. But it must become a priority as we realize that, even in states where our relationships can be celebrated and protected, our livelihood and lives still remain vulnerable and under attack.

Note: The opinions expressed in this article are solely the author's.

D'Arcy Kemnitz, Executive Director, National LGBT Bar Association brings more than two decades of non-profit and social justice experience to her role as The LGBT Bar's executive director. Kemnitz orchestrates a coalition of more than 25 local, state and regional LGBT bar associations, and dozens of LGBT law student associations. She is a distinguished graduate of the University of Wisconsin and Hamline University School of Law.

Suggested citation: D'Arcy Kemnitz, The First Step: Ending the Use of Gay and Trans Panic Defenses , JURIST - Professional, Oct. 20, 2014, http://jurist.org/professional/2014/10/D'Arcy-Kemnitz-panic-defense.php.



This article was prepared for publication by Jacqueline Jones, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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