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'Gay panic' criminal defense strategies should be curtailed by legislation, ABA House resolves

The ABA House of Delegates has unanimously passed a resolution urging federal, state, local and territorial governments to pass legislation curtailing the availability and effectiveness of the use of “gay panic” and “trans panic” defenses by criminal defendants. These defense strategies seek to excuse the crimes by saying that the victim’s sexual orientation caused their assailant’s violent reaction to them. The ABA recommends that courts, when asked, instruct juries to ignore the victim’s gender or sexual orientation in its deliberations; it also recommends that laws might ban any use of such defenses in noncapital cases.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association was granted floor privilege to speak on the issue before the vote.

Kemnitz detailed several brutal assaults and murders of young people whose assailants used gay-panic defenses to claim their acts were reasonable.

Such defenses, she said, are “surprisingly long-lived historical artifacts” from a time when widespread antipathy was the norm. Kemnitz added that these defenses represent “the notion that LGBT lives are worth less than other lives.”

The resolution, similar to what is in a California statute, was sponsored by the sections of Criminal Justice and of Individual Rights and Responsibilities; the Young Lawyers Division; the Center for Human Rights; the commissions on Sexual Orientation and Gender Identity, Youth at Risk, Racial and Ethnic Diversity and Domestic and Sexual Violence.