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American Bar Association Considers Banning Gay Panic Defense

A standard ploy for sleazy defense attorneys with clients who bash gays is to claim the victim triggered the attack by making  a pass at the murderer (or perhaps just a simple assaulter). But the days of the gay panic defense may be numbered. The American Bar Association’s Criminal Justice Section is taking up a proposal that would no longer allow defense attorneys to use victims’ sexual orientation or identity against them in court. 

The gay panic defense has been used in many gay-bashing cases, including such high-profile ones as the Matthew Shepard murder. In essence, the defense argues that the defendant had the right to flip out and beat someone to a bloody pulp because he was afraid that the victim was coming onto him. (If this was a legitimate reason for killing someone, thousands of heterosexual men would be meeting their demise at the hands of women they hit on.)

“This resolution puts an end to a longstanding injustice in our legal system and gives a voice to countless lesbian, gay, bisexual and transgender victims of violence, one we never hear because they are no longer here to speak for themselves,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association. The proposal goes before the full ABA house of delegates for a vote in August.

By:          John Gallagher
On:           Jun 4, 2013
Tagged: , , , ,
    • Ridpathos

      How this defense lasted so long is a mystery to me.

      Jun 4, 2013 at 9:43 am · @ReplyReply to this comment ·
    • Caleb in SC

      I’m sure this resolution will pass; however, it is really not up to the ABA. Whether such a defense will continue to exist is a matter of the individual states’ laws. The ABA has passed many resolutions that are never adopted by the states.

      Jun 4, 2013 at 10:39 am · @ReplyReply to this comment ·
    • LaTeesha

      Given how many gays are being bashed & killed in NY perhaps it’s time for the str8 panic defense to be used by a gay person who kills a str8 person. Just say you feared for your life because str8 peeps are evil & have a history of hurting & killing gay peeps. Turnabout is fair play.

      Jun 4, 2013 at 12:26 pm · @ReplyReply to this comment ·
    • hyhybt

      @Caleb in SC: Why would it depend on state law? Don’t lawyers have to abide by the rules of bar associations if they want to keep their licenses? That wouldn’t necessarily stop the defense from being used, but it would make it awfully rare anyone would be willing to try it.

      Jun 4, 2013 at 12:48 pm · @ReplyReply to this comment ·
    • Caleb in SC

      @hyhybt: I understand your confusion. Despite its name, the ABA doesn’t actually license any lawyers at all. Instead, your licensure is dependent on the state or states in which you practice law. The same with the American Medical Association (AMA). The AMA doesn’t actually license any physicians, who are individually licensed in their respective states. For example, I am licensed in SC, but being a member of the ABA is not a prerequisite for practicing law in any state. Another example of the lack of any binding authority of the ABA, in 2000, the ABA proposed sweeping changes to the Rules of Professional Conduct. When SC established its commission to review these changes, SC did not adopt them all and modified some of them. So, while the ABA may issue a formal resolution condemning the “gay panic” defense, a state is free either to accept this position or reject it depending on state law. Regardless, if passed, this resolution would certainly be persuasive, but it is not binding.

      Jun 4, 2013 at 1:10 pm · @ReplyReply to this comment ·
    • Cyn

      It always has been a lame defense. If I, as a cis female, decide a man has been to forward with me, I am not allowed to beat the shit out of him, or assault him in any way. While I have broken a few hands that would not keep to themselves, mostly it was on men who would never ever report being assaulted by a woman. “Gay panic” is simply a green light for packs of idiots to beat the tar out of anyone they perceive as gay.

      Jun 4, 2013 at 2:44 pm · @ReplyReply to this comment ·
    • erasure25

      @Caleb in SC: Thanks for the insider information. It seems more likely that an attorney would become somewhat of a pariah in their legal social groupings if they constantly use the gay panic defense when the ABA bans it. Something like peer pressure, which is no small thing.

      Jun 4, 2013 at 3:20 pm · @ReplyReply to this comment ·
    • Caleb in SC

      @erasure25: I personally have never heard of it being used here in SC. Despite South Carolina’s somewhat backward stance when it comes to LGBT issues, juries here see through BS quickly. This alleged defense will be stricken when solicitors and district attorneys keep arguing against the validity of this sham defense. Eventually, it will be gone altogether, but despite this article, I don’t think it is even commonly accepted anymore, which is a good thing.

      Jun 4, 2013 at 3:36 pm · @ReplyReply to this comment ·
    • Joetx

      @hyhybt: Furthermore, states through their legislatures & judicial systems, create the laws outside of those promulgated by Congress & the federal courts. The ABA has no say, especially when it comes to conservative lawmakers & judges.

      Jun 4, 2013 at 8:10 pm · @ReplyReply to this comment ·
    • CivicMinded

      How about a gay panic offense? I asked him out and he beat the tar out of me. Send him to prison please.

      Jun 4, 2013 at 11:59 pm · @ReplyReply to this comment ·
    • Stache1

      @Ridpathos: Their just taking advantage of the bigotry that was already there in the jury. I’ve been involved in a trial about 13 years ago where the “gay panic defence” was used. This was next to San Francisco and still the jury found him innocent even though the perp was completely guilty.

      Jun 5, 2013 at 3:35 pm · @ReplyReply to this comment ·
    • jmmartin

      We had a local “expert witness” who was hired by defense attorneys when they represented sociopathic stud hustler types (rough trade) accused of murdering gay men. This person was a former county medical examiner, retired but willing to testify on a case by case basis, telling juries that when some men are both attracted to, and repulsed by, a homosexual making advances, they “panic” and try to destroy the person representing the object of their abhorrence. In clearly homophobic terms, this erstwhile coroner always painted a picture of gay men as preying mantises, repugnant and eager to “take advantage” of their killers. His suggestion was that gays should simply stay in the closet rather than risk attaining what he saw as their just rewards: death. It was clear from his testimony that he thought homosexual behavior a chosen path one takes, not an orientation one is born with. Fortunately, he is no longer among the living himself. One less scoundrel to aid common murderers in getting off with a “justifiable” manslaughter rather than conviction of a 1st degree or capital offense.

      Jun 10, 2013 at 12:27 am · @ReplyReply to this comment ·

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