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American Bar Association votes against gay and trans panic defenses

American Bar Association votes against gay and trans panic defenses

The American Bar Association’s (ABA) House of Delegates has voted to approve a resolution against the use of so-called homosexual provocation or transgender provocation defenses in criminal trials – also known as the gay-panic defense.

Resolution 113A, approved by the ABA on Monday at its Annual Meeting, states that the ABA ‘urges federal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.’

‘Such legislative action should include requiring courts in any criminal trial or proceeding, upon the request of a party, to instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity; and specifying that neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.’

The resolution was developed by America’s National LGBT Bar Association and had already been approved by the ABA’s Criminal Justice Section.

Celebrating the resolution’s passage, National LGBT Bar Association executive director D’Arcy Kemnitz said it sent a clear message to lawmakers how the legal fraternity felt about the issue.

‘The ABA’s adoption of this measure sends a clear message to state legislatures that legal professionals find no validity in the sham defenses mounted by those who seek to perpetuate discrimination and stereotypes as an excuse for violence,’ Kemnitz said.

‘The “gay panic” and “trans panic” defenses have been used to try and excuse some of the most heinous violence exacted against innocent victims. State legislatures should immediately move to enact the ABA’s recommendation by passing laws banning ‘panic’ defenses.’

‘Too many people have hidden for far too long behind baseless “panic” defenses – judges, lawmakers and juries must demand that these practices come to an end and juries must be provided with instructions advising juries to make their decisions free of improper bias and prejudice. Today’s ABA resolution is an important first step towards realizing that goal.’

The resolution comes 15 years after the beating death of American student Matthew Shephard in 1998 who’s killers attempted to use their disgust at his sexual orientation to downgrade the charges against them.