Stop the Panic

• Author: Lorelei Laird
• Pages: 18-19

Stop the Panic

More lawmakers are considering banning

gay and trans ‘panic defenses’

By Lorelei Laird

The bad blood

between Brandon

McInerney and L arry

King was well k nown

among their cla ss-

mates at E.O. Green

Junior High in Oxnard, Ca lifornia.

It got so bad that McInerney told

another student he planned to kil l

King.

King, 15, was openly gay. He occa-

sionally wore makeup and heels

and fl irte d with other boys, even

though they gave him a hard time

for it. He especially liked t o fl irt with

McInerney, despite the anger and

embarrassment it caused McInerney.

One day, King loudly called out,

“What’s up, baby?” to McInerney in a

crowded hallway.

The next morning, during fi rst

period, McInerney, then 14, pulled

out a gun and shot King to death .

In California , the evidence of pre-

meditation could have been enough

to earn McInerney a convic tion for

fi rst-degre e murder. But at the 2011

trial, McInerney’s defense law yers

argued that he should inst ead be

convicted of voluntar y manslaugh-

ter because Ki ng’s fl irtatious com-

ments had pushed McInerney to an

“emotional breaking point.” Enough

jurors agreed. Lat er on, one juror

wrote a letter to t he Ventura C ounty

District Att orney’s o ce, c alling

McInerney’s prosecution a “propa-

ganda-fi lled w itch hunt.”

“You all know the victim ha d a

long history of devia nt behavior,”

the juror wrote. “After week s of tes-

timony, it is my fi rm belief that this

young man reacted t o being bullied

and being the target of La rry King’s

sexual harassment.”

The juror was responding to what ’s

known as a “gay panic defense,” in

which defendants say vict ims pro-

voked the crime by reveali ng their

sexuality or ma king a nonviolent

sexual pass. L ike its close cousin,

the trans panic defense, it ’s a w ay to

dimini sh the defendant’s responsi -

bility for the crime—in McInerney’s

case, to initi ally argue for volun-

tary man slaughter rather than fi rst-

degree murder. It’s also o ensive to

many in the LGBT community who

say it blames the victim a nd tells the

world that gay and trans lives are le ss

valuable than other people’s.

That’s part of why the ABA House

of Delegates voted in 2013 to urge

jurisdictions to ba n gay and trans

panic defenses. Now, a slew of states

are taking a ction. Illinois and Rhode

Island bans on the defenses went

into e ect las t year, and bills were

introduced in at least si x other legis-

latures, including Congre ss.

“It does serve an importa nt pur-

pose [in] that it gives the judges the

power to really reject t hese types

of defenses when they come up,”

says Jordan Blair Woods, a profes-

sor who teaches crim inal law and

law and sexuality at t he Un iversity

of Arkansas S chool of Law. “And it’s

a fi rm statement in the cr iminal law

that these typ es of inequalities are

not a reason to justif y violence.”

DEFENSE THEORIES

Gay panic defenses have been

around since at least the 1960 s,

according to a 2016 report Woods

co-authored at the UCLA Sc hool of

Law’s Williams Ins titute, a think

tank on LGBT issues. “Homosexua l

panic disorder” was re cognized as a

diagnosis in the fi rst edition of the

American Psychiat ric Association’s

Diagnostic and Statistical Manual

of Mental Disorders, wh ich helped

legitimize the defense . Both gay

panic and homosexualit y have been

removed from the DSM, but the

Williams Ins titute report found that

almost half the st ates had considered

appellate cases involv ing some form

of the defense.

Indeed, the report notes th at there

are several ways in which g ay or

trans panic ca n be used to defend

against a crim inal charge. The one

McInerney used is common: The vic-

tim provoked the defendant with a

same-sex pass or a revelat ion about

the victim’s gender or sexuality,

reducing the def endant’s responsibil-

ity for the crime. Another c ommon

argument says a vic tim’s a ctions,

sexuality or gender identity c aused

the defendant to fl y into a pan ic or

rage that caused a tempora ry men-

tal breakdown, creating diminished

capacity or temporar y insanity. Less

commonly, a defendant might argue

self-defense against a n unwanted

sexual advance.

These aren’t stand-alone defenses,

Woods notes, but theories underlying

conventional defenses. “There’s really

not one type of gay or trans pa nic

defense,” Woods says.

But all versions of it are harmf ul,

says D’Arcy Kemnitz, executi ve di-

rector of the National LGBT Bar

Association.

“It tells LGBTQ+ individuals t heir

lives are worth less t han those of

their heterosexua l friends and neigh-

bors, it excuses violence comm itted

against the LGBTQ+ com munity, it

further implies tha t there is some-

thing unnatura l and dangerous

about same-sex intima cy,” Kemn itz

says, using a plus sign to include a

larger number of people who are not

straight or cisgender.

In 2013, when the ABA passed

Resolution 113A, which urged jur is-

dictions to ban gay and tra ns panic

defenses, there were no such laws.

That starte d changing in 2014, when

California pa ssed a law saying kill-

ings are unreas onable if they stem

from discovery or k nowledge of “the

victim’s actual or perc eived gender,

gender identity, gender expression or

sexual orientation.”

Illinois followed in 2017 with a law

providing that “discovery, knowledge

or disclosure of the vict im’s se xual

orientation” cannot mitigate fi rst-

degree murder or constitute provo-

cation. That took e ect i n early 2018,

National

Pulse

The Docket

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