Prosecutors Detail Strategies To Counter "Gay Panic" Defense

SoloSAN FRANCISCO, CALIFORNIA – A California man repeatedly stabs someone he brought home and receives the lightest possible sentence for the slaying.
Outside Atlanta, the man accused of bludgeoning a prosecutor to death gets off after arguing that he acted in self-defense.
A teenager in Alabama says unwelcome sexual attention caused him to shoot a college professor.
What the murder cases have in common, according to prosecutors and police officers who gathered here Thursday, is that each of the victims were gay or transgender, and the defendants successfully used that information to persuade judges and juries that it made them less culpable.
“The suggestion that criminal conduct is mitigated by bias or prejudice is inappropriate,” said San Francisco District Attorney Kamala Harris, who organized a two-day national conference to counter the use of the so-called “gay panic” defense. “We can’t outlaw it, but we can combat it.”
Lawmakers in California and New York are considering bills to deter the common courtroom strategy of making a victim’s sexual orientation central to a criminal defense. Both measures would require judges to remind jurors that bias toward the victim cannot influence their deliberations.
California’s bill, which also would instruct juries that gay panic defenses are inconsistent with state laws protecting gays, lesbians and transgenders from discrimination, was prompted by the murder of 17-year-old Gwen Araujo, a transgender teenager who was beaten and strangled in 2002 after two men with whom she’d had anal sex learned she was biologically male.
At Thursday’s conference, the prosecutor who won second-degree murder verdicts in the case, as well as two defense lawyers who unsuccessfully tried using their clients’ collective rage at discovering the truth about Araujo to seek manslaughter convictions, agreed the issue was too complicated to be legislated.
“Gwen being transgender was not a provocative act. It’s who she was,” said Alameda County Assistant District Attorney Chris Lamiero.
“However, I would not further ignore the reality that Gwen made some decisions in her relation with these defendants that were impossible to defend,” he added. “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.”Solo
Other conference participants suggested different strategies for diffusing defense arguments that play on negative public attitudes toward homosexuality.
Cynthia Lee, a professor at the George Washington University School of Law, said prosecutors could, for example, tell jurors that the term “homosexual panic” was coined by a psychiatrist in 1921 to treat anxious patients with same-sex sexual urges. It was not used by defendants, most often heterosexual males, to claim they were provoked or rendered temporarily insane when faced with a potential gay encounter until the late 1960s, according to Lee.
“Homosexuality, latent or otherwise, is not a mental disorder, and homosexual panic is not a recognized disease or mental disorder,” she said.
Lee said prosecutors also could ask the jury to imagine if they would render the same verdict if the suspect were gay and the victim straight.
Angela Harris, a professor at the University of California, Berkeley’s Boalt Hall School of Law, said that while laws barring certain defense claims would be helpful, the use of panic defenses would naturally lose their effectiveness as society becomes more accepting of gays.
There are signs that might be happening already.
Last year, a Kentucky jury rejected a teenager’s claim that he was rendered insane after he had oral sex with a man he later robbed and shot. Similarly, jurors in Pennsylvania refused to accept a 22-year-old man’s claim that that he slashed a banker to death after an unwelcome sexual advance. Both defendants were convicted of first-degree murder.
Harris, the San Francisco district attorney, said she hoped the conference would give police and prosecutors tools for helping juries see that gay victims do not deserve to be brutalized because of their sexual orientation. She compared the situation to the blame the criminal justice system used to assign to victims of rape and domestic violence.
“Lawyers are much more effective in communicating the victim’s experience to a jury when they understand the experience,” she said. “They are able to take the jury through the analysis of why the victim should be entitled to the protection of the law equal to anyone else.”
from The Mercury News

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