PlanetOut reported that legislatures in two states, California and New York, are considering ways to undermine the use of the “gay panic” defense in cases of violence against lesbians, gay men, and transfolk.
I’m certainly glad to read that, and I hope that the other 48 states follow, but the proposed legislation, at least in New York, does not go nearly far enough. According to the article, the New York proposal is modeled on the California legislation and revolves around the instructions given to juries when they are deciding a case. The article quotes language in the New York bill that would give juries this instruction: “Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes bias against the victim or victims or witness or witnesses based upon his or her race, color, national origin, ancestry, gender, religion, religious practice, age, disability, gender identity or sexual orientation.”
There are two problems. First, the instruction should, I believe, be worded much differently. Rather than instructing the jurors not to let their own biases get in the way of their decision making, it ought to instruct them not to let the biases of the defendants be seen as justification for their alleged crime. In this case the instruction could read, “Homophobia and heterosexism are not mitigating circumstances.” That would be much clearer!
The second problem is much harder to address, and it, too, is identified in the article through a quote attributed to California’s state senator Carole Midgin. No matter how you instruct a jury, it will be hard for them, especially when faced with prosecutors who are using homophobia as a defense, to ignore their own internalized homophobic reactions. She says, “The truth is, hate is taught. Intrinsically we permit it… We can’t pretend it ain’t real. There is panic. There is revulsion. I think we have our work to do.”
One way to work against bias is to reframe it to show how unreasonable it is. These “gay panic” defenses tend to be used in situations where a straight man (or group of men) feels threatened by the presence of a person he perceives to be gay or transgendered and even perhaps perceives to be “coming on to him.” He lashes out, allegedly out of fear/revulsion/panic, beating the crap out of the gay man (or, in the case that sparked the action in California, killing a transgendered person) and then his hatred and rage, framed as “panic” are used as an argument that he was operating under diminished mental capacity. This may not get him off altogether, but it may effectively be seen as a “mitigating circumstance” and get him a lesser sentence. But what if we turned the tables. What if a woman, after being hit on by a man, were to shoot him and claim that his actions panicked her to such a degree that she couldn’t control herself. Assuming he had not been stalking her, abusing her, or otherwise terrorizing her we would never allow that as a defense in court. Men need to be shown that being hit on is an annoyance and not an assault (or they need to start reframing their own come-ons!).
Even more importantly, we need to work constantly to root out the sources of that fear and hatred, intensely felt by some men, that apparently causes them to act so violently. Granted, it’s a tough problem. The dominant culture in the US is still pretty heterosexist. We need to expand the spaces for people to express their sexual identities openly so that homophobic people see that in most ways most gays, lesbians, and transfolk are an awful lot like them. Yet that is incredibly tough to do (and risky) when advances by non-straights into the “mainstream” seem to result in backlashes. The more the law protects sex/gender minorities, the braver we can be but the risks are still present. We need more than the law. We need allies who also call people on their intolerance. We need active support for a more open sexual culture. It’s a tough path but it’s a matter of basic civil rights and equality!