The nation’s largest legal organization, meeting in San Francisco, will consider Monday whether to urge lawmakers to clamp down on the “gay panic” defense, in which murder defendants claim they were provoked by a victim’s homosexual advances.
As California has discovered, however, it’s a hard issue to define and even harder to address.
A resolution before the American Bar Association calls for the federal and state governments to prohibit such defenses in noncapital murder cases – or, as a more moderate option, to require antibias jury instructions modeled after a California law enacted after the notorious East Bay slaying of a transgender teenager.
“There’s still plenty of bias out there,” said Stephen Saltzburg, a George Washington University law professor who will present a resolution against “gay panic” defenses to the ABA’s policymaking House of Delegates.
But California’s example raises questions about whether such measures are effective.
In 2002, 17-year-old Gwen Araujo of Newark was choked and beaten to death by two men who said they became enraged when they learned that the person with whom they had just had sexual relations was born male. As one defense lawyer, Michael Thorman, put it, the killing could be traced to Araujo’s “deception and betrayal” of Thorman’s unsuspecting client.
An Alameda County jury deadlocked on first-degree murder charges against the two men in 2004. A second jury convicted them in 2005 of second-degree murder, with sentences of 15 years to life, while rejecting hate-crimes charges.
In response, the Legislature and Gov. Arnold Schwarzenegger in 2006 enacted the Gwen Araujo Justice for Victims Act, the first law of its kind in the nation. It requires juries in such cases to be instructed that they should not be influenced by the sexual orientation or gender identity of either the victim or the defendant.
Gay rights advocates praised the new law as a possible breakthrough. But it didn’t seem to have much impact in its first known courtroom test.
That case arose from the February 2008 slaying of Larry King, a gay 15-year-old junior high school student in the Ventura County town of Oxnard. A day after King asked 14-year-old classmate Brandon McInerney to be his valentine and called out “Love you, baby” in a hallway, McInerney pulled a pistol out of his backpack in a classroom and shot King in the back of the head.