Last year, the American Bar Association House of Delegates passed a controversial resolution calling on states to ban the so-called gay panic defense. The defense arises (when it does arise, which is rarely), in cases of a heterosexual accused of an assault on a gay individual when the defense attorney argues that his client was so shocked and terrified by a homosexual advance of a romantic or sexual nature that he was overcome with disgust, anger and fear, and was launched into a psychotic state that compelled violence. Many judges refuse to allow it, because there is no accepted scientific evidence that “gay panic” exists as a legitimate prelude to temporary insanity.

The ABA resolved:

 That the American Bar Association urges federal, tribal, 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 defendant s 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, o r to mitigate the severity of any non – capital crime.

It should be no surprise that California was the first state to follow this plan, with Gov. Jerry Brown signing an anti-gay panic defense bill into law in September. Now New Jersey has a similar law under consideration. Continue reading →