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Filed under: Hate Crimes

American Bar Association may ban gay and trans panic defenses

By Scottie Thomaston

Marco McMillian, whose murderer floated 'gay panic' defense. Attribution: The New Civil Rights Movement
Marco McMillian, whose murderer floated ‘gay panic’ defense. Attribution: The New Civil Rights Movement

In August, the American Bar Association’s House of Delegates will consider a resolution that would minimize or eliminate use of the “gay panic” and “trans panic” defenses by defense attorneys. That legal strategy is most prominently associated with the murder of Matthew Shepard, and it was used in the trial of the murderer of Lawrence King. Essentially, perpetrators of violent crimes against LGBT people are defended under the theory that they committed the crime because of the victim’s LGBT identity, so they’re not responsible for their crimes. In the trial of Matthew Shepard’s killer, the defense team asserted that the murder was caused by Shepard, because, they said, he made a pass at the murderer, making him uncomfortable. (The “gay panic” defense was eventually barred by the judge in that trial.) In the Lawrence King trial, the defense team made the same basic argument: King was flamboyant and that caused McInerney his killer to shoot him in class. The trans panic defense asserts that a transgender person’s identity is so shocking it can lead someone to commit violent crimes against them, such as in the case of Angie Zapata’s killer.

Gay and trans panic defenses were popular in past decades but less successful in recent years. Still, they promote the idea that a LGBT person’s identity is a threat, and is responsible for crimes committed against them.

The resolution, if passed, would disallow the defense in court; the resolution also requires training for judges and lawyers, and jury instruction.

The proposal was submitted by the National LGBT Bar Association, and the ABA’s Criminal Justice Section will take it up at their annual August meeting. The National LGBT Bar Association’s executive director commented on the importance of their resolution:

“This resolution puts an end to a longstanding injustice in our legal system and gives a voice to countless lesbian, gay, bisexual and transgender victims of violence, a voice we never hear because they are no longer here to speak for themselves,” said D’Arcy Kemnitz, executive director of the LGBT Bar.
“We have been fighting against gay and trans panic defenses for more than 15 years,” said Kemnitz. “We must protect the LGBT community by refusing to allow defendants to use a victim’s sexual orientation or gender identity to justify their heinous crimes.”

As recently as this year, after the murder of a gay, black mayoral candidate in Mississippi, lawyers for the defense floated the idea of saying the murder was committed because of gay panic.

2 Comments June 4, 2013

Sixth Circuit holds that three Michigan pastors lack standing to challenge constitutionality of the Hate Crimes Act

By Scottie Thomaston

The Thomas More Law Center, on behalf of three Michigan pastors, filed a constitutional challenge to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, signed into law in 2009 by President Obama. The Law Center alleged that the Act punished “thought crimes” and speech, although the Act’s purpose is to deter violent crimes against minority groups. The district court ruled that the pastors don’t have standing to challenge the Act, because they had not committed a violent crime against one of the groups protected by the act, and they had no intention to do so. Last week the Sixth Circuit Court of Appeals affirmed the decision that they lack standing.

The constitutional attack on the Act, the panel writes, is really only a political attack:

Plaintiffs’ underlying complaint is with the government’s heightened protection of homosexuals from criminal violence—this lawsuit is really a political statement against the Hate Crimes Act.
Plaintiffs have a (sincere, apparently) belief that the Hate Crimes Act “is all about elevating certain persons (homosexuals) to a protected class under federal law based on nothing more than their choice to have sex with persons of the same gender, while marginalizing strong religious opposition to this immoral choice.”

The law does not target speech, but rather violent acts:

And they filed this lawsuit in an unnecessary effort to ensure that the Hate Crimes Act will continue not to prohibit them from “publicly denounc[ing]” others.


Plaintiffs oppose the Hate Crimes Act. Somewhat inconsistently, they also say they oppose “crimes of violence.”

The panel says that plaintiffs want to say things in opposition to gays and lesbians, and since nothing in the Act prohibits that, there’s no challenge here that’s ripe:

Plaintiffs say they want no more than to “publicly denounce homosexuality” and “spread God’s Word” based on their interpretation of the Bible, without engaging in unprotected forms of expression such as “fighting words,” “true threats,” or “advocacy [that] is directed to inciting or producing imminent lawless action,” The Act does not prohibit Plaintiffs’ proposed course of speech.

The First Amendment does not cover violent acts:

Plaintiffs provide no legal authority for the proposition that constitutionally protected speech—that is, other than “fighting words,” “true threats,” or “advocacy [that] is directed to inciting or producing imminent lawless action,” Black, 538 U.S. at 358-59—is a “violent act[]” that “causes bodily injury.” We looked; there isn’t any.

And, no, no one will get arrested under the Hate Crimes Act for quoting the Bible:

They try, for example, [to explain the type of speech they want to use that will criminalize them under the Act] when they hypothesize that they might be subject to enforcement actions for quoting Biblical references to homosexuality, but even there only one such quotation contains any suggestion of “bodily injury.” That’s Leviticus 20:13—“If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.” Whatever meaning Plaintiffs attribute to this passage, they have not alleged any intention to do more than merely quote it. About that, the Hate Crimes Act has nothing to say.

And expression of religious beliefs through speech does not lead to the conclusion that there is intent to commit a violent act:

However, Plaintiffs point to no case in which mere expression of religious beliefs—even those in accordance with Leviticus 20:13 or similar passages—was found to establish such intent. Similarly, Plaintiffs cite no authority for the proposition that the possibility of an erroneous conviction makes a criminal statute unconstitutional. Obviously, it does not. Plaintiffs lack standing.

The pastors claim that “homosexual activists” have accused them of violating the Act and that has a chilling efect on their speech:

That chill, Plaintiffs say, comes froma combination of “a vocal group of homosexual activists in Michigan” and from supposedly supportive federal prosecutors. Plaintiffs say they have “set forth specific instances in which they have been accused of engaging in [conduct proscribed by the Act] by the very ‘community’ the Act was intended to protect.” These instances consist of several undated quotes by various people and organizations which generally accuse Plaintiffs and other homosexuality opponents of supporting or promoting violence through their religious messages. Of course, these comments say nothing about Plaintiffs’ actual intent, what the Act says, or how the Act might be applied to Plaintiffs by those with actual authority to implement it.

Indeed there is not even an expressed or implied threat of religious persecution under the Act:

And conspicuously absent from Plaintiffs’ allegations is any express (or even implied) threat of official enforcement of the Hate Crimes Act against Plaintiffs or any other religious leaders for the type of conduct they seek to practice: there is nothing that objectively supports “a credible threat of prosecution.”

And the government is not going to put people under surveillance for engaging in protected religious speech:

The same is true of Plaintiffs’ claim that the Hate Crimes Act will subject them to adverse law enforcement action short of prosecution, such as investigation and surveillance: they have presented no actual facts to support an assertion that the government has taken or intends to take any investigatory actions under the Act against those merely engaging in protected speech.

So the pastors lack standing to pursue a constitutional challenge to the Act.

A concurring opinion adds quite a bit more interesting information about the legislative history of the Hate Crimes Act, which makes is very clear the Act was intended to protect against violent crimes, not speech or religious activity.

12 Comments August 6, 2012

Lesbian recovers $25,000 from New York restaurant after a homophobic attack

By Scottie Thomaston

In 2010, a customer at a Sizzler restaurant in Queens, New York was brutally attacked for being gender non-conforming and a lesbian:

On September 18, 2010, Liza Friedlander and two friends went to a Sizzler restaurant in Forest Hills, Queens for the breakfast buffet.

After paying, Friedlander served herself from the buffet. As Friedlander was walking back toward her table to join her companions, a Sizzler manager aggressively approached her. In front of other restaurant patrons, the manager began yelling at Friedlander, accusing her of not paying for the breakfast buffet. He violently shoved Friedlander in the chest, causing her to fall backward, and kicked her in the legs while yelling for her to get out of the Sizzler and calling her a “fucking dyke.”

The Sizzler dining room quickly devolved into a threatening scene when patrons began terrorizing Ms. Friedlander, with Sizzler patrons screaming at her, spewing homophobic and hate-filled epithets.

A male diner began yelling at Friedlander, calling her a “he-she freak” and demanding that she leave the restaurant. Another man threatened to take Ms. Friedlander outside and sexually assault her, threatening that he would show her “what a dick is.” The man then threw objects at Friedlander. Finally, after police arrived, a battered Friedlander was taken by ambulance to a nearby hospital.

Lambda Legal filed a lawsuit against the restaurant alleging discrimination. The complaint alleged violations of the new (at the time) law protecting LGBT people from bias crimes, saying the attacks:

violated the New York City and State Civil and Human Rights Laws because Friedlander was violently attacked and discriminated against based on her actual or perceived sexual orientation, gender identity or expression, and sex in a place of public accommodation.

Lambda’s client recently was awarded $25,000 from the restaurant in the case after a judgment was issued. From a Lambda Legal press release, via Pam Spaulding:

Lambda Legal client Liza Friedlander, who was violently attacked while trying to dine with friends at a Forest Hills restaurant owned by Defendant Waroge Met, Ltd., doing business as Sizzler Restaurant 0489, recently recovered $25,000 in a lawsuit filed in Queens County in 2011. The court entered a judgment against the defendant Sizzler Restaurant 0489 and its manager, defendant Edgar Orellana, after those defendants offered to allow judgment to be taken against them.

“Liza Friedlander experienced violence, discrimination, and degradation at this restaurant because she did not conform to the stereotypes of how a woman should look. This intolerable behavior is prohibited under the New York State and City human rights laws,” said Natalie Chin, Staff Attorney for Lambda Legal. “The result sends a strong message: violent and discriminatory behavior motivated by bias against lesbians, gay men, bisexuals or transgender people will not be tolerated. Businesses are not exempt from treating LGBT people with dignity and respect.”

Under New York case law, there is “no distinction” between a “judgment on consent,” entered against defendants here, “and a judgment rendered after trial and entered upon a verdict or a decision.”

“I was attacked and threatened by people yelling terrible anti-LGBT slurs, throwing things at me and threatening to sexually assault me,” said Lambda Legal client Liza Friedlander. “On that day, I felt helpless, humiliated and frightened, but today I’m so proud that I stood up and did something about it. No one should have to go through a nightmare like that.”

This was the first case testing the new law.

20 Comments June 13, 2012

First ever federal hate crime indictment in anti-LGBT attack is issued

By Scottie Thomaston

Back in 2009, Congress passed and the president signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, to add, among other things, gender identity and sexual orientation to existing federal hate crimes statute. Today, a federal grand jury issued the first ever indictment against someone accused of an anti-gay attack under the Act. The Justice Department issued a statement, saying:

“A federal grand jury in London, Ky., returned a three-count indictment charging David Jason Jenkins, 37, and Anthony Ray Jenkins, 20, for kidnapping and assaulting Kevin Pennington, and for conspiring with each other and with other unnamed individuals to commit the kidnapping. The indictment charges the men with committing a hate crime in violation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which expanded federal jurisdiction to include certain assaults motivated by someone’s sexual orientation.”

The indictment charges two people with kidnapping and assaulting an openly gay man, Kevin Pennington. The Huffington Post article linked above says that:

The Lexington Herald-Leader cites a court document that claims Jenkins’ wife Alexis and sister Mable, cheered on the attack, yelling gay slurs such as “Kill that faggot.”

Questions have persisted since the law’s passage about whether and when it will actually be enforced by federal law enforcement officials, and now a case will finally move forward. It is possible that the defendants could face life in prison if they are convicted of the charges.

1 Comment April 12, 2012