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Prosecutors Seek to Deter Gay Panic Defenses for Violent Crimes

Prosecutors said they want to limit the use of "gay panic" defenses — where defendants claim their crimes were justified because of fear or anger over their victims' sexual orientation.

"The suggestion that criminal conduct is mitigated by bias or prejudice is inappropriate," said San Francisco District Attorney Kamala Harris, who organized a two-day national conference on the issue. "We can't outlaw it, but we can combat it."

Lawmakers in California and New York are considering bills to deter the common courtroom strategy of making a victim's sexual orientation central to a criminal defense.

Both measures would require judges to remind jurors that bias toward the victim cannot influence their deliberations.

California's bill also would instruct juries that gay panic defenses are inconsistent with state laws protecting gays, lesbians and transgenders from discrimination.

It was prompted by the murder of 17-year-old Gwen Araujo, a transgender teenager who was beaten and strangled in 2002 after two men with whom she'd had anal sex learned she was biologically male.

At Thursday's conference, the prosecutor who won second-degree murder verdicts in that case agreed and expressed skepticism that new laws are the answer.

"Gwen being transgender was not a provocative act. It's who she was," said Alameda County Assistant District Attorney Chris Lamiero.

"However, I would not further ignore the reality that Gwen made some decisions in her relation with these defendants that were impossible to defend," he added. "I don't think most jurors are going to think it's OK to engage someone in sexual activity knowing they assume you have one sexual anatomy when you don't."

Two defense lawyers who used their clients' rage at discovering the truth about Araujo as part of their defense agreed that the issue is too complicated to be legislated.

Other conference participants suggested different strategies for defusing defense arguments that play on negative public attitudes toward homosexuality.

Cynthia Lee, a professor at the George Washington University School of Law, said prosecutors could ask the jury to imagine whether they would render the same verdict if the suspect were gay and the victim straight.

Angela Harris, a professor at the University of California, Berkeley's Boalt Hall School of Law, said that while laws barring certain defense claims would be helpful, the use of panic defenses would naturally lose their effectiveness as society becomes more accepting of gays.