"Gay Panic" No Longer Supports Voluntary Manslaughter in California

California prevents "gay panic" from being used to support voluntary manslaughter.

As of January 2015, a California defendant charged with first degree murder will no longer be able to argue that, because he killed while in the throes of “gay panic,” his act constituted the lesser offense of voluntary manslaughter. (California Assembly Bill 2501; Penal Code section 192(a) and (f).)

California’s new law represents the Legislature and Governor’s finding that no reasonable person, upon discovering the true sex of a potential or actual sexual partner, would fly into a rage or panic and kill the partner. (The law says it’s “objectively unreasonable” for someone to react this way.) Manslaughter committed while in the heat of passion requires not only that the defendant actually be in a rage or panic, but also that a reasonable person in the same position would react similarly. So, the new law’s decree means gay panic can’t lower a murder charge to heat-of-passion manslaughter.

How Does the New Law Change Murder Trials?

The new law is intended to prevent the legal consequences of the following scenarios: The defendant and the victim are engaged in romantic activities when the defendant discovers that the victim is not of the gender that the defendant thought he or she was; or the victim attempts to initiate unwanted sexual contact with the defendant. The defendant reacts by killing the victim, and is charged with murder.

At trial, to counter the prosecution’s claim that the defendant acted with  malice  (the mental state required for murder), the defendant produces evidence that he acted “in the heat of passion”—that he was so overcome with panic or rage, based on the discovery of the victim’s anatomy or sexual intent, that he was incapable of forming malicious intent.

By offering this evidence, the defendant argues that he should be convicted only of  voluntary manslaughter. That form of manslaughter involves an unlawful killing, without malice, while in the heat of passion (the classic example is the person who discovers his spouse in bed with another; enraged, he kills the lover and/or the spouse). The defendant asks the judge to instruct the jurors that if they find that the killing was in the heat of passion due to “gay panic,” they should find the defendant guilty of manslaughter rather than murder.

How the new law changes the jury’s choices

Under the new law, the defendant will no longer be able to ask the judge for this “lesser included” manslaughter instruction; the law says that the defendant’s reaction to discovering the victim’s gender can never constitute “heat of passion.”

But the new law does not affect a defendant’s ability to argue that he’s guilty of second rather than first degree murder. It does not prevent him from arguing that his “gay panic” made him incapable of premeditation or deliberation, which is required for the typical form of first degree murder. (See  the bill’s author’s analysis, pointing out that “This bill does not appear to limit the use of a ‘panic defense’ to show that a killing was not premeditated.”)

Juries finding for murder when manslaughter is ruled out

A defendant can still introduce evidence of “gay panic” to rebut evidence that he acted with premeditation and deliberation. However, if the jury believes that the defendant’s rage or panic introduces reasonable doubt as to premeditation or deliberation, they are left only with second degree murder. They no longer have the option of a lesser finding of voluntary manslaughter.

Where Did the “Gay Panic” Defense Come From?

The gay panic defense originated with a psychological condition introduced in the 1920s called “homosexual panic,” which is panic induced by unwanted homosexual advances. Although the “disorder” is not widely accepted by the medical or psychological community (due to the lack of scientific evidence that it even exists), the majority of states permit it to be introduced during a criminal trial in some form. Despite its pervasiveness, legal commentators have routinely observed that the use of the gay and trans panic defense naturally gives rise to the admission of evidence regarding the victim’s sexuality and sexual behavior, and has the potential to inflame juries as well as judges.

Arguments against the new law

While the legislation was being considered, the squeeze play described above was not lost on key players. Comments on the bill by the Assembly staff tellingly point out that more murder convictions are at least theoretically possible: “To the extent the provisions of this bill  result in convictions for more serious offenses than otherwise would have occurred under existing law,  the Department of Corrections and Rehabilitation (CDCR) will incur additional state incarceration costs for longer prison terms.” (Senate Appropriations Committee Fiscal Summary, emphasis added.)

Opponents to the legislation noted that the new law overturns established principles of law, arguing that “AB 2501 undermines core legal principles of the theory of manslaughter and potentially exposes someone who acts without ’premeditation’ and ‘deliberation’ to a charge of [first degree] murder and a potential life sentence. Despite the valid objectives of the proponents, any new law must not flip cornerstone legal concepts awry.” (California Attorneys for Criminal Justice,  comments in opposition  to the bill.)

Arguments in favor of the bill

The bill had many supporters. Their arguments focused on eliminating the ability of the defendant to “blame” the crime on the victim’s gender or sexuality by suggesting that had the victim not been who the victim was, the crime would not have occurred. They pointed to a few high-profile cases (see below) in which defendants charged with the murder of gay or transgender victims ended up with manslaughter rather than murder convictions.

Supporters of the bill had some heavy hitters in their camp. In 2013, the  American Bar Association unanimously approved a resolution  that called for legislation that would prevent reduction of a crime from murder to manslaughter where there’s been a nonviolent sexual advance by the victim followed by the defendant’s discovery of the victim’s sex. The ABA’s position was based in large part on the lack of scientific research in support of the “gay panic” defense.

High Profile “Gay Panic” Cases

In the past several years, the gay or trans panic defense was utilized in a number of high-profile murder cases in California, leading to increased attention and outrage.

  • In 2002, Gwen Araujo, a transgender teenager, was brutally beaten and strangled after she was discovered to be anatomically male by several men who engaged in sexual contact with her. After an initial mistrial, a jury convicted two defendants of second degree murder, despite initial charges of first degree murder. Additionally, the jury failed to convict on the requested hate crime enhancement (relating to Araujo being transgender). Two other defendants later pled guilty to voluntary manslaughter. Under California’s new law, these plea deals likely would not have been possible.
  • In 2005, Estanislao Martinez stabbed Joel Robles 20 times after discovering Robles was transgender. Martinez utilized the gay panic defense, ultimately pleading guilty to voluntary manslaughter (again, a result likely not possible now).
  • In 2008, Brandon McInerney, claiming to be humiliated by unwanted homosexual overtures, shot and killed his high school classmate Lawrence King. McInerney asserted gay panic as a defense to first degree murder and his trial ended when the jury deadlocked (though a majority believed that he was guilty only of voluntary manslaughter). McInerney ultimately took a plea deal to second degree murder. Under California’s new law, jurors would not have had the option of even considering voluntary manslaughter.

These cases, as well as numerous other incidents around the country (including the Matthew Shepard murder in Wyoming and the  “Jenny Jones” case in Michigan), garnered widespread media attention. They sparked indignation that someone’s sexual orientation or gender identity could provide even a partial justification for acts of violence and murder, and that the actions or behavior of the victim could become a central focus of litigation.

California Stands Alone

While California remains the only state to pass a law such as the one discussed here (similar legislation has also been introduced in New Jersey), several other states impose related limitations or restrictions. Massachusetts, for example, has explicitly rejected gay panic as the sole basis for an insanity defense. Other jurisdictions have curtailed a defendant’s use of gay panic as a basis for provocation. In Pennsylvania, for example, a judge prohibited a defendant from introducing evidence of his own psychosexual history to establish that seeing persons engaged in a same-sex encounter provoked him into committing murder.

Expected Challenges to California’s New Law

Legal commentators predict that defendants will challenge the new law. Such defendants will probably argue along the following lines.

As explained above, the new law reflects the Legislature’s finding that no reasonable person would kill due to “gay panic.” But legislative findings, though presumptively entitled to great deference, cannot stand if they violate the concept of “equal protection of the law.”

Defendants are likely to point out that legislators haven’t eliminated any other “panic” reaction as a basis for voluntary manslaughter. For example, a defendant who reacts with rage and panic upon discovering that his partner is of a certain religion  can  argue that his mental state supports nothing more than voluntary manslaughter.

Of course, the fact that a defendant can make an argument doesn’t mean a jury has to—or is even likely to—accept it. But what’s at stake here is completely preventing certain defendants from even making the “panic” argument in the first place. Opponents wonder why the “religious panic” defendant, for example, should have that right, but not the gay panic defendant. Is a killing following the discovery of the victim’s true religion any more “reasonable” than one following the discovery of the victim’s sex? The new legislation seems to implicitly say yes, and for that reason, might fall to a challenge of equal protection.

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