Feb 16, 2008 - Oxnard, California, USA - Mourners remember 15-year-old E.O. Green Junior High School eighth-grader on Saturday Feb. 16, 2007 in Oxnard, Calif. Larry King was an eighth-grader that was perceived by classmates as a gay or crass-dressing student who had been bullied. Friends said he became more dramatic with makeup and dressed more flamboyantly in the last two weeks prior to him being fatally shot by a classmate. No details have been released from authorities on a motive. The shooting has brought upon critical observation to how middle schools address and prevent discrimination that could lead to violence. (Credit Image: © Afton Almaraz/ZUMA Press)

California to Ban “Gay Panic” Defense in Criminal Trials

Using junk science, defense attorneys have justified violent assaults on the LGBT community since the 1960s. Now one state aims to outlaw their dubious arguments

Larry King was typing an English paper in the computer lab of his Oxnard, California, middle school in 2008 when another student, 14-year-old Brandon McInerney, shot him execution-style in the back of the head. The day before King’s murder, the openly gay 15-year-old had told McInerney “Love you, baby!” and asked him to be his valentine.

When the court tried McInerney on hate crime charges, his lawyers invoked what’s called the “gay panic” defense. The legal strategy aims to justify the assailant’s actions by arguing that they were a hysterical reaction to the victim’s homosexual advances. McInerney’s defense team claimed he felt threatened and harassed by King’s flamboyant behavior—King wore high-heeled boots and mascara and openly flirted with his bullies, including McInerney—and he eventually snapped.

The argument worked. The trial ended in a hung jury, and McInerney, who faced life in prison, eventually pled guilty to a lesser charge and was sentenced to 21 years.

This wasn’t the first time that a gay panic defense was used in a criminal trial. Lawyers have relied on that tactic in hundreds of cases dating back to the 1960s. Now the California legislature is pushing through a bill that would ban such defenses from state criminal courts. According to the bill’s sponsor, Assemblywoman Susan Bonilla, the legislation sends a message that violence against the LBGT community is not acceptable. “This is 2014!” she said during the initial proposal. Should it pass, the bill would become the first of its kind in the country.

“This defense has actually victimized dead individuals,” says D’Arcy Kemnitz, the executive director of the National LGBT Bar Association, which has been leading the effort to ban the legal strategy. “It has victimized people who can no longer stand up for themselves because they are dead and gone as a result of society’s bias against their sexual identity.”

The notion of gay panic is rooted in the field of psychology, which once characterized homosexuality as a mental illness. Psychologist Edward Kempf coined the term “homosexual panic” in 1920 to describe people who were terrified that they might be gay. This compulsively anxious state was even recognized by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders starting in 1952, but the diagnosis became obsolete in the early 1970s, when homosexuality was removed from the manual as a mental defect.

Even so, the faux condition has continued to surface in cases where LGBT individuals were assaulted or murdered. The defense lawyers’ arguments generally center on insanity (alleging that the victim’s sexual advances triggered a nervous breakdown or psychotic episode in the perpetrator), provocation (the victim was basically asking for it by making unwanted sexual advances) or self-defense (claiming that the victim’s actions, although nonviolent, were sufficiently threatening because of his or her sexual orientation).

In recent years there have also been cases involving “trans panic” defenses, such as the 2002 murder of Gwen Araujo, a 17-year-old transgender woman. Araujo was beaten and strangled to death by four men—two of whom she had previously had sex with—after they discovered she was biologically male. One of the attackers’ attorneys argued that he acted not out of malice, but rather that he was provoked by the shock of learning that Araujo was transgender. Jurors in the initial trial were divided, but the man was found guilty of second-degree murder in a second trial.

Kemnitz says the California bill marks a major step forward in eliminating bias in the criminal court system. “One question we will never know the answer to is this,” she says, referring to the King trial of six years ago. “Would the jury have deadlocked if the victim had been a teenage girl who said, ‘Be my valentine’?”

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