The So-Called Gay Panic Defense Is Still Allowed In American Courts… Why?

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Matthew Shepard was tied to a fence post, pistol-whipped, beaten, and left to die on the Wyoming prairie for being gay. His murder galvanized Americans with a conscience to search deep within. His homosexuality repulsed two bigots — so repulsed them that they killed him.

Gay Panic Defense As A Legal Strategy?

Some use the gay panic defense as a legal strategy to justify the murder of a human being because of that person’s sexual orientation.

And it is still in play today.

The concept is scurrilous. A hate crime is committed against a gay man or woman. The Offender goes to trial. A lawyer argues that their client lost control due to being emotionally damaged by the sexuality of another human being.

Gay Panic As A Mitigating Factor

The courts weigh the defense as a mitigating factor. And, unbelievably, it works. Being gay is that upsetting for some.

The Guardian UK tackles the subject:

“It is impossible to know how often ‘gay panic’ has been employed as a defence tactic, or how frequently juries have opted for lesser sentences as a result of conscious or unconscious biases in cases where gay or transgender people are attacked. A 2016 analysis by the Williams Institute at the UCLA School of Law found that the defences have appeared in court opinions in about half of US states.

The first widely known American use came in the 60s when the American Psychiatric Association still defined homosexuality as a mental disorder. A Californian man named Joseph Rodriguez beat another man to death with a tree branch in what his attorney called ‘an acute homosexual panic brought on him by the fear that the victim was molesting him sexually.'”

Only 50 years ago the American Psychiatric Association (APA) deemed homosexuality a mental illness. That fact is a stain on our nation’s history. However, although the APA eventually crawled out of the darkness, the maligned concept still lingers in the court system.

And it requires legally sound measures to counter the bigotry. D’arc Kemnitz, the National LGBT Bar Association’s Executive Director, spoke to the Guardian UK as to why the defense has historically been effective. She said:

“‘We know it works. … [The Strategy exploits] society’s deeply held belief that individuals who are attacked, murdered, somehow brought it on themselves for being gay and making a pass or whatever.

[It is invoked] to take the focus away from the act, whether it be an assault or indeed a murder [by] the accused, to the status of the victim, and so a defence attorney will talk about the status of a victim as either gay or trans in order to lessen the outrage of the crime.”

States are now fighting back, however:

In February, Andrew Cuomo, the Democratic governor of New York, announced a proposal citing the death of Islan Nettles, a transgender woman who was beaten to death by a man who had flirted with her. The attacker pleaded guilty to manslaughter and was sentenced to 12 years in prison, which Nettles’ family felt was too lenient. Cuomo’s plan was rejected by state lawmakers because it would have placed limits on defence strategies available to attorneys, one assemblyman told the New York Law Journal. However, the American Bar Association passed a resolution against the defences in 2013.

What is so strikingly awful about the defense strategy is that it shames a victim in death. As the Trump administration seeks to roll back LGBT protections hard fought for; more states will follow New York’s lead… Hopefully.


Featured Image by Donations Are Appreciated Via Pixabay/CC-0. 

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