No More Panicking Against The LGBT Community, AB 2501 Signed Into California Law

By Kevin Mallory

California has become the first state to ban the “panic” defense after Governor Jerry Brown signed AB 2501 into law on Sept. 27.

AB 2501, sponsored by California Assemblywoman Susan Bonilla, is a bill that prohibits the use of the “gay panic” and “trans panic” defenses which allowed defendants to claim that their violent acts occurred after learning of the victim’s sexual orientation or gender identity. The panic defense was also used to downgrade a murder charge to manslaughter or to avoid a conviction altogether.

California Assemblywoman Susan Bonilla

Susan Bonilla

“With this bill, we are stating that discovering a person’s sexual orientation or gender identity is insufficient proof of provoking any sort of violent act upon that individual,” said Bonilla, who represents the 14th California District, in a statement."

Last year, the American Bar Association’s House of Delegates passed a resolution calling for federal, state, and local governments to preclude criminal defendants from using panic defenses. The California Assembly later followed suit, passing the bill with a 50-10 vote in August. So far, California is the only state to nullify the defense outright.

“There is no reason why we should treat LGBT victims of crime any differently than those who are not LGBT,” Bonilla said. “AB 2501 is a testament to this notion.”

In an article published in the Southwestern University Law Review last December, George Washington University law professor Cynthia Lee details the historical origins of “gay panic.” The term “homosexual panic disorder” was spawned by psychiatrist Edward Kempf. Lee’s article states that Kempf “noticed that some of his patients experienced a heightened sense of anxiety in same-sex environments because their feelings of attraction to others of the same sex differed from what they felt were the socially acceptable feelings they were supposed to have. … His patients were gay, but had not yet acknowledged this to themselves or others.”

The psychological disorder would soon evolve into a legal, criminal defense. The panic defense made its way to courtrooms in the 1960s, and it has been used in several high-profile cases.

Matthew Shepard

Matthew Shepard

In Oct. 1998, 21-year-old Matthew Shepard, a student at the University of Wyoming was kidnapped, robbed, and beaten to death in Laramie, Wyoming. According to the prosecution, Shepard was kidnapped and taken to a remote prairie, where he was tied to a fence and pistol whipped so severely that he suffered six skull fractures, among other injuries. His assailants, Aaron McKinney and Russell Henderson, attempted to use the panic defense. The defense was struck down by a Wyoming judge, and both men are serving life sentences in prison.

In Oct. 2002, Michael Magidson, Jose Merel, Jason Cazares, and Jaron Nabors were accused of beating, strangling, and burying 17-year-old Gwen Araujo in Newark, California. Magidson and Merel had engaged in sexual activity with Araujo and were enraged when they learned Araujo had been born male.

Gwen Araujo
Gwen Araujo

Nabors pleaded guilty to manslaughter in exchange for his testimony against the other three. He was sentenced to 11 years in jail; Cazares would plead guilty to voluntary manslaughter following two mistrials. He was sentenced to six years in jail. Magidson and Merel were convicted of second-degree murder in 2005 after two trials. They were each sentenced 15 years to life in prison.

Jordan Blair Woods, a Richard Taylor Law Teaching Fellow for the Williams Institute at UCLA, believes that eliminating the panic defense may help to eliminate outdated ideas about homosexual and transgendered people.

“The gay and trans panic defense accepts the idea that an ordinary person would act rashly and kill a person in the heat of passion simply upon discovering that a person is LGBT,” Woods said. “The defense is rooted in irrational and deep-seated fears of homophobia and transphobia.”

While advocates note that this is only one step in the march toward legal equality for the LGBT community, Bonilla believes this bill signals a needed paradigm shift.

“With AB 2501, we are moving forward to ensure equality in our courts and making it very clear that discrimination against the LGBT community is intolerable and unacceptable,” Bonilla said. California will join New Zealand as the only places to ban the panic defense. AB 2501 goes into effect Jan. 2015.