The American Bar Association, House of Delegates has adopted a resolution which will no longer allow perpetrators to use a defence for physical attack or murder, based on the victim’s sexual orientation, or the perpetrator’s alleged fear of a sexual advance by the victim – the so-called ‘gay panic defense’ [defence],
According to the ABA Report on the use of this, and the ‘trans-panic defense’, these defences are outdated, and, based on current understanding of LGBT individuals, should not be allowed to influence a jury:
The “gay panic” and “trans panic” legal defenses are surprisingly long-lived historical artifacts, remnants of a time when widespread public antipathy was the norm for lesbian, gay, bisexual, and transgender (‘LGBT’) individuals. These defenses ask the jury to find that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. They characterize sexual orientation and gender identity as objectively reasonable excuses for loss of self-control, and thereby mitigate a perpetrator’s culpability for harm done to LGBT individuals. By fully or partially excusing the perpetrators of crimes against LGBT victims, these defenses enshrine in the law the notion that LGBT lives are worth less than others. […}
Continued use of these anachronistic defenses marks an egregious lapse in our nation’s march toward a more just criminal system. As long as the gay and trans panic strategies remain available and effective, it halts the forward momentum initiated by criminal law reforms such as rape shield rules and federal hate-crime laws. To reflect our modern understanding of LGBT individuals as equal citizens under law, gay and trans panic defenses must end.
In this report, various cases of LGBT related crimes are mentioned, including the murder of 15 year old Larry King.
The American Bar Association adopted resolution (113A) relating to the “gay panic defense”, during the association’s policymaking body meeting in San Francisco, at the ABA’s 2013 Annual Meeting, which was held from 8th to 13th August.
The meeting of the House of Delegates, which has 560 members from state and local bar associations, and other ABA organizations, was held at the end of their Annual Meeting.
Among other resolutions adopted during the session, for instance policies on genocide and mental health, the House approved six recommendations sponsored by the Criminal Justice Section regarding the “gay panic” defense.
The Resolution states:
That the American Bar Association 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:
(a) 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
(b) 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.