Homophobic hooey

A bill is introduced to stop using gay victims' sexual orientation or gender as cause for violence

Greg Lucas’ state-politics column Capitol Lowdown appears every other week in SN&R. He also blogs at www.californiascapitol.com.

A heterosexual person is so outraged by a come-on from a homosexual person, or so shocked by the discovery a person is homosexual, that they stab, strangle or shoot them. Usually fatally.

Because this violence is caused by temporary irrationality, there’s no malice aforethought, and the death penalty can’t be applied. Or the violence is merely self-defense, necessary to ward off the sexual advance.

That’s the basics of the “gay panic” legal defense.

It seems archaic that violence, fatal or otherwise, is mitigated because the victim is somehow “asking for it” by making an unwanted proposition or simply by being sexually oriented in a way the perpetrator doesn’t dig. A popular view seems to be that the ability to legally hide behind such homophobic hooey perpetuates negative stereotypes about homosexuals and is antithetical to society’s stated zero-tolerance for intolerance.

“The suggestion that criminal conduct is mitigated by bias or prejudice is inappropriate,” said Attorney General Kamala Harris in 2006 when she was San Francisco’s district attorney. “We can’t outlaw it, but we can combat it.”

But how?

Gay panic isn’t a new notion. Psychiatrist Edward J. Kempf appears to have coined the phrase “homosexual panic” in 1920. Criminal-defense lawyers began employing “gay panic” with defendants charged with murdering male victims back in the 1960s. The “trans panic” defense is a newer wrinkle, but the idea is similar: A victim’s “deceit” over their “true” gender allegedly sparks the violence.

Back in 2005, the American Bar Association urged legislation to “curtail the availability and the effectiveness of the use of ’gay panic’” defenses. California happily obliged, passing the 2006 Gwen Araujo Justice for Victims Act, named for a 17-year-old Newark, Calif., girl strangled and beaten to death in 2002 by men who had sex with her before discovering she was biologically male.

Araujo’s law allows a judge to tell jurors that their biases, including those regarding sexual orientation or gender identity, aren’t supposed to affect their deliberations, which seems implicit in the juror job description. Jurors found the two men primarily responsible for killing Araujo guilty of second-degree murder, a sentence of 15 years to life. The other man got a reduced sentence for cooperating with police and being less involved in the crime.

Assemblywoman Susan Bonilla, a Concord Democrat, wants to halt the use of gay and trans panic defenses. Bonilla’s bill, introduced last month, deals with voluntary manslaughter, punishable by a state-prison sentence of three, six or 11 years.

To prove voluntary manslaughter, the killing of another human must be the result of a “sudden quarrel” or the “heat of passion.” Bonilla’s bill says a defendant can’t claim the quarrel or passion stems from rage over the victim’s disability, gender, nationality, race, ethnicity, religion, sexual orientation or gender identity. (Apparently, “age rage” is still permissible.)

By any measure, Bonilla’s list is a lot broader than simply halting gay or trans panic defenses. Even the most tepid First Amendment fan would admit Bonilla’s bill puts a pretty tight exculpatory straitjacket on a criminal defendant—innocent until proven guilty beyond a reasonable doubt by a jury of their peers who are supposed to weigh the facts without prejudice.

And if there is prejudice, seems better to discuss it in open court than have it corrode the proceedings beneath the surface. In the Matthew Shepard murder case in 1999, defense lawyers were told they couldn’t present a gay-rage defense, so instead, they put two witnesses on the stand that said Shepard came on to them, and it made them uncomfortable. Same dif.

Not to go all Frank Capra Civics 101, but a jury of 12 individuals, shaped through preemptory challenges and challenges for cause by lawyers on both sides, is without question a far superior determiner of credibility than the Legislature, with its one-size-fits-all “solutions” that can never take into account all factual possibilities. That’s why there are juries.