Angie Zapata's killer claims that he simply "snapped" when he learned the woman he had begun to date was transgender. Thirty-six hours after the revelation, Zapata was dead, the victim of a brutal blunt-force beating with a fire extinguisher. She was 18 years old.
The killer never disputed his culpability in the murder itself. The wealth of DNA and other evidence made an innocent plea impossible. Instead, his defense attorneys requested a reduced sentence on the ground that Zapata's gender was, in itself, a "provocation."
This legal strategy, often referred to as "gay panic" or, in the case of Angie Zapata, "trans panic," is still depressingly common in American courtrooms. One part temporary insanity and two parts institutionalized bigotry, its very existence precludes the family members, friends and loved ones of lesbian, gay, bisexual and transgender (LGBT) murder victims the legal remedies others take for granted.
Society's attitudes on LGBT equality have changed, and it is time for the law to catch up. The legal profession must resolve to kill the gay panic legal strategy once and for all.
All legal professionals should be concerned with the discriminatory nature of a courtroom tactic based on "panic," particularly when the so-called panic is a reaction to another's identity.
At its core, the gay panic tactic defines unwanted sexual advances or statements of one's identity from LGBT people as somehow more severe, or "provocative," than similar overtures between straight people. In our culture, most women, even before reaching adulthood, learn how to react to unwanted male attention: We simply say, "No." Our legal system offers no leniency to a woman who reacts violently to a pass from a man, no matter how undesirable she may find the offer.
INCONCEIVABLEFurthermore, any similar defense would be inconceivable in relation to other minority populations. Our legal system would not, for example, accept "race panic," as a legal strategy to someone accused of violence against people of color. In fact, the opposite is true. We often administer harsher punishments for violent acts that are directed specifically against other minority groups.
Yet in an LGBT-specific context, and only in this context, a sexual solicitation or a statement of one's gender is equivalent to an attack. Using this maneuver in court means that defense attorneys believe the victim's assertion of his or her orientation or identity is an actual threat. This is the very definition of discrimination.
This gay/trans panic legal strategy shifts the responsibility for the violence from the perpetrators to the victim. It was as if the defense attorneys had blamed Zapata for being murdered. Beyond the obvious discriminatory nature of this premise, the use and abuse of this strategy could actually lead to an increase in anti-LGBT violence.
Indeed, when the strategy succeeds, it does so specifically because it taps into deep-seated anti-LGBT values and prejudices that exist in certain jury members, judges or other courtroom actors. In other words, the acceptance of "panic" as a legal tactic allows for increased amounts of legally sanctioned violence against LGBT Americans.
Many legal professionals have had enough. In 2005, Atlanta District Attorney Paul Howard organized the first national conference of prosecutors and law enforcement officials to stop the use of gay panic in the courtroom. "It is demeaning, outrageous, insulting and downright ridiculous for defendants to believe that the death of any human being is justified because he or she is homosexual," Howard said. "My office and lawyers are sick of it."
Some states have decided that the gay panic tactic fails the objective prong of provocation, thus rejecting it as a valid "defense" altogether.
• In 1991, the Massachusetts Supreme Judicial Court, in Commonwealth v. Troila, decided that "the only evidence of provocation was the defendant's alleged statement that the victim 'made a pass at him.' No jury could find on the basis of the evidence that reasonable provocation existed."
• Nine years later, in People v. Page, the Illinois Supreme Court wrote: "[Unwanted sexual advances are] not one of the categories of provocation that this court has recognized....Thus, even if evidence that [the victim] made a sexual advance toward defendant on the night of the murder had been admitted at trial, this evidence would not have entitled defendant to a voluntary manslaughter instruction."
• In 2006, months after San Francisco District Attorney Kamala Harris organized the second national gay panic conference, the California Legislature passed a law severely restricting the use of it or any other legal strategy that plays upon the inherent prejudices of a jury.
This progress, however important, is still relegated only to a handful of states. Even as the acceptance of equality for LGBT people has increased enormously in the United States in recent years, a gay or trans panic strategy may still be considered in the majority of state courtrooms.
Angie Zapata's murder trial ended in April 2009. Although her murderer was not granted a reduced sentence, analysts argue that this had as much to do with the 36-hour time lag before the killing than the rejection of the defense itself. The sad fact remains that "panic" was still considered a legitimate murder defense by the prosecutor and the judge in this Colorado courtroom.
The gay panic legal strategy is outmoded, discriminatory and downright dangerous for LGBT Americans and their families. It's time for the profession to kill off the gay panic legal strategy, once and for all.
D'Arcy Kemnitz is the executive director of the National Lesbian, Gay, Bisexual and Transgender Bar Association, which promotes justice in and throughout the legal profession for the LGBT community in all its diversity.
