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Nevada bans so-called trans, gay panic defenses

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Nevada bans so-called trans, gay panic defenses (1 Viewer)

Nevada bans so-called trans, gay panic defenses

"This bill is a step forward for Nevada," said Brooke Maylath of the Transgender Allies Group. "It’s not OK for people to leverage their stigma."

Nevada has become the fourth state to prohibit the use of so-called gay and trans panic defenses, following California, Rhode Island and Illinois.

Senate Bill 97, which was signed into law Tuesday, prohibits defendants from using a victim’s sexual orientation, gender identity or gender expression as a defense in a criminal case.

Briana Escamilla, the Nevada state director for the Human Rights Campaign, a national LGBTQ group, said it was “long past time” for the state of Nevada to institute this legislation.

What is the gay and trans “panic” defense?
The gay and trans “panic” defense is a legal strategy which asks a jury to find that a victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction, including murder. It is not a free standing defense to criminal liability, but rather a legal tactic which is used to bolster other defenses. When the defense is employed, the perpetrator claims that their victim’s sexual orientation or gender identity not only explains – but excuses – their loss of self-control and subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, these defenses imply that LGBTQ+ lives are worth less than others.

One of the most recognized cases that employed the gay “panic” defense was that of Matthew Shepard. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. The men attempted to use the gay “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today.

How is the defense used in court?
Traditionally, the gay and trans “panic” defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide.

  • Defense of insanity or diminished capacity: The defendant alleges that a sexual proposition by the victim – due to their sexual orientation or gender identity – triggered a nervous breakdown in the defendant, causing a gay or transgender “panic.” This defense is based on an outdated psychological term, “gay panic” disorder, which was debunked by the American Psychiatric Association and removed from the DSM in 1973. Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up.
  • Defense of provocation: The defense of provocation allows a defendant to argue that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim. Defendants claiming a “provocative” advance stigmatize behavior which, on its own, is not illegal or harmful, but is only considered “provocative” when it comes from an LGBTQ+ individual.
  • Defense of self-defense: Defendants claim they believed that the victim, because of their sexual orientation or gender identity/expression, was about to cause the defendant serious bodily harm. This defense is offensive and harmful because it argues that a person’s gender or sexual identity makes them more of a threat to safety. In addition, gay and trans “panic” is often employed to justify violence when the victim’s behavior falls short of the serious bodily harm standard, or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed.

Why is this an LGBTQ+ issue? Aren’t “panic” defenses used against all minority groups?
“Panic” defenses are uniquely used to justify violent crimes against LGBTQ+ individuals. While other minority groups are undoubtedly also victims of hate crimes, there are few, if any, instances where a defendant claims that the revelation of someone’s race, religion, or other minority identification provoked them to violence. In contrast, gay and trans “panic” defenses frequently draw on unique stigmas about LGBTQ+ people, sexuality, and gender to justify horrific violence against gay and trans individuals.[/U]

“These 'defenses' send the destructive message that LGBTQ victims are less worthy of justice and their attackers justified in their violence,” Escamilla wrote in an email. “Every victim of violent crime and their families deserve equal justice, regardless of their sexual orientation or gender identity.”

The bill was proposed by the Nevada Youth Legislature, a state program that gives high school students an opportunity to present bills to the Nevada Legislature.

Former Nevada state Sen. Valerie Wiener, a Democrat, told NBC News that Olivia Yamamoto, a high school student who is the chair of the Nevada Youth Legislature, was inspired to propose the bill after one of her classmates was murdered.

“These bills that the students propose in the Nevada Youth Legislature have real impact,” Weiner said. “They reflect what they’re experiencing and how courageous they are.”

Yamamoto’s classmate, Giovanni Melton, 14, was killed by his father after he discovered the teen had a boyfriend. Melton’s former foster mother said the father “would rather have a dead son than a gay son.”

Senate Bill 97 states that “‘gay panic’ and ‘trans panic’ defenses appeal to irrational fears and hatred of lesbian, gay, bisexual and transgender persons, thereby undermining the legitimacy of criminal prosecutions and resulting in unjustifiable acquittals or sentencing reductions.”

Perhaps the best known use of the “gay panic” defense in the U.S. was in the murder trial of Aaron McKinney and Russell Henderson, who were found guilty of first-degree murder in the 1998 death of Matthew Shepard. Shepard was a gay student at the University of Wyoming who was robbed, tortured, tied to a fence and left to die by McKinney and Henderson. In court, McKinney’s lawyer argued that his client was driven to temporary insanity following sexual advances by Shepard.

An extension of the “gay panic” defense — the “trans panic” defense — was employed following the murder of Gwen Araujo. Arajuo was a transgender woman who was strangled, beaten with a shovel and buried by a group of four men, two of whom she had been sexually intimate with, in 2002. One defendant's attorney said that his client was not biased and that he had been shocked "beyond reason" to learn he had unwittingly had sex with a man. Two of the defendants were convicted of second-degree murder, and the other two defendants pleaded guilty or no contest to voluntary manslaughter.

Brooke Maylath, a board member for the Reno-based Transgender Allies Group, told NBC News that passage of Senate Bill 97 is a “step forward for Nevada.”

“It’s not OK for people to leverage their stigma and further oppress a group of people who don’t deserve this horrible violence,” Maylath said. “It fights back against the notion that our lives are worth nothing. We have jobs, we pay taxes, we contribute to the betterment of society. In death, we should be treated with respect.”

Source: NBC News


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