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Posted on Mon, Jan. 16, 2006
Bill aims to block `panic defense'
PROPOSAL IS NAMED FOR TRANSGENDER TEEN
By Yomi S. Wronge
San Jose Mercury News
The Bay Area men convicted last year of murdering a Newark transgender teenager said they panicked upon learning that the beauty they had been intimate with was biologically male.
Using that ``panic defense,'' their attorneys called it merely a manslaughter, but jurors rejected that argument. Now a civil rights group wants the California Legislature to redress what they see as victim-blaming in hate-crime cases.
Named in honor of the 17-year-old who was beaten and strangled in October 2002, the Gwen Araujo Justice for Victims Act would amend jury instructions to state that the use of so-called ``panic defenses'' is inconsistent with California's comprehensive hate crimes law.
Hate crimes are criminal acts (or attempted acts) against an individual or group because of their actual or perceived race, color, religion, ancestry, national origin, sexual orientation, gender or disability.
Panic defenses are almost exclusively used in crimes against victims who are -- or perceived to be -- gay, lesbian, bisexual or transgender.
``Having the panic defense be accepted by juries is an affront to the strong stances we have taken against intolerance,'' said Assemblywoman Sally Lieber, D-San Jose, who introduced the bill. ``There shouldn't be another young person like Gwen that loses their life and has their life then devalued in a courtroom.''
But Gerald Uelmen, a professor at Santa Clara University School of Law who was part of the O.J. Simpson defense team, said he would find a jury instruction like that prescribed by the current version of AB 1160 ``almost incomprehensible.''
``What's a jury supposed to do with that?'' Uelmen said. ``The jury doesn't determine public policy, just decides facts. And to say you should decide facts differently if a particular theory of defense is raised, I just think that's not an appropriate way to instruct a jury.''
Araujo was killed after four men she knew -- two of whom she had been sexually intimate with -- discovered she was anatomically male.
Their defense attorneys claimed the men flew into a rage after discovering they had been ``tricked'' into having sex with a biological male. They called the killing a crime of passion, and urged jurors to cut childhood friends Michael Magidson, Jason Cazares and Jose Merel a break -- reduce the charge from murder to manslaughter -- for doing what any reasonable person would do under the same circumstances.
A fourth man involved, Jaron Nabors, pleaded guilty to voluntary manslaughter.
In September, a jury found Magidson and Merel guilty of second-degree murder -- verdicts that carry a maximum of 15 years to life in prison.
But the jury deadlocked over Cazares. The Newark resident has since pleaded guilty to voluntary manslaughter. All three defendants are scheduled to be formally sentenced Jan. 27.
Throughout the trial, Araujo's family and supporters decried what they saw as victim-blaming on the part of the defense. ``The claim is that when they discovered a person was gay or transgender they panicked, and that somehow justifies their violence,'' said Geoff Kors, executive director of Equality California, an advocacy group that sponsored the bill.
Even when the panic defense is used unsuccessfully, as in the Araujo case, advocates say it sends a message that it is OK to have a violent reaction to learning someone is gay or transgender.
AB 1160 passed the Assembly Public Safety Committee by a 4-2 vote Tuesday and still faces several hurdles before it lands on the governor's desk.
Jay Boyarsky, supervising deputy district attorney in charge of hate crime prosecutions for Santa Clara County, called the bill ``redundant'' because judges already have discretion to allow or not allow panic defenses.
Contact Yomi S. Wronge at email@example.com or (408) 920-5744.
Calif. Bill To Ban Gay Panic Defense Advances
by Mark Worrall, 365Gay.com San Francisco Bureau
Posted: January 11, 2006 - 7:00 pm ET
(Sacramento, California) A bill that would mitigate the effects on a jury of the so-called gay or trans panic defense has passed a key committee of the California legislature.
The Gwen Araujo Justice for Victims Act passed the Assembly Public Safety Committee by a 4-2 vote. If a defense attorney attempted to use the argument that a client committed a crime out of panic because the victim were gay or trans a judge would be required to instruct the jury that the use of societal bias, including so-called "panic strategies," to influence the proceedings of a criminal trial is inconsistent with the public policy of the State of California.
The bill is named is named in memory of a transgender teenager from Newark, Calif., who was attacked and killed in 2002.
"We should not allow criminal defendants to blame their victims," said Assemblywoman Sally Lieber, the author of the legislation.
"We prohibit discrimination based on race, religion, gender and sexual orientation in nearly all areas of public life. Why should we allow killers to use bias and intolerance as a justification for murder?"
The murder of Gwen Araujo focused national attention on the increasing use of the “panic strategy” by defendants in murder trials.
In 2004, the criminal trial of the three men accused of attacking Araujo ended in a mistrial, following several weeks of defense attorneys asserting that the defendants “panicked” upon learning that Araujo was transgender.
Their arguments, largely based on stereotypes about transgender women, were framed to play on societal bias against transgender people. If successful, this panic strategy could have resulted in a conviction for the lesser charge of voluntary manslaughter, rather than first- or second-degree murder as was sought by the prosecution.
In a second trial two men were found guilty Sept. 12 of second-degree murder but the jury deadlocked on a third man. Three months later, he pleaded no contest to voluntary manslaughter in a deal with prosecutors.
“California has a powerful law that enhances the penalties of criminals who commit hate crimes,” said Geoffrey Kors, Executive Director of Equality California. “The ‘panic’ defense all but invalidates this law by reducing sentences due to the hate that the defendant had for his or her victim.”
“Allowing defendants and their attorneys to succeed in appealing to anti-transgender bias among jurors is like putting a bull’s eye on the back of every transgender person in the state,” said Christopher Daley, Director of the Transgender Law Center. “Through this bill, the Legislature has the ability to assure transgender people that the anti-discrimination policies that protect them in California institutions apply to the courtroom as well.”
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January 12, 2006
California "gay panic" bill one step closer to reality - advocate.com
Legislation that would limit the use of the “gay panic” defense in criminal court cases cleared a California legislative committee on Tuesday, moving one step closer to passage. Named the Gwen Araujo Justice for Victims Act, the legislation would amend jury instructions to say that the use of societal bias to influence a criminal trial is inconsistent with California public policy, specifically hate-crime laws.
The act, sponsored by gay advocacy group Equality California and introduced by Assemblywoman Sally Lieber, passed the assembly public safety committee by a 4–2 vote. “We should not allow criminal defendants to blame their victims,” Lieber said. “We prohibit discrimination based on race, religion, gender, and sexual orientation in nearly all areas of public life. Why should we allow killers to use bias and intolerance as a justification for murder?”
The legislation will now go before California’s full assembly. The bill is named after a transgender California teen brutally murdered in 2002. In a 2004 trial that was later declared a mistrial, lawyers of the three men accused of attacking and killing Araujo asserted that the defendants “panicked” after learning Araujo was a transgender person. (Advocate.com)