The American Bar Association (ABA) has voted to reject arguments justifying attacks on gay people because the victims allegedly came on to the offenders.
The “gay panic” or “trans panic” defence is a legal defence, usually against charges of assault or murder, in which the accused claims that the victim’s gay romantic or sexual advances caused him or her to go into a state of violent temporary insanity.
This homophobic argument has been used widely around the world, including in South Africa, in efforts to acquit or reduce sentences against attackers.
On Monday, the ABA’s House of Delegates unanimously passed a resolution urging federal, state, local and territorial governments to pass laws curtailing the use of gay and trans panic defences by criminal defendants.
It said that courts in any criminal trial or proceeding should “instruct the jury not to let bias, sympathy, prejudice, or public opinion influence its decision about the victims, witnesses, or defendants based upon sexual orientation or gender identity”.
Laws should also specify that “neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.”
D’Arcy Kemnitz, executive director of the National LGBT Bar Association, told ABA delegates that the gay panic defence represents “the notion that LGBT lives are worth less than other lives”.
With 410,000 members, the ABA, is an association of lawyers and law students in America and formulates ethical codes related to the legal profession.
In March, Mbulelo Arthur Ntlauzana (25), the murderer of well known Durban businessman Nhlanhla Gasa (63), told the courts that he killed Gasa after the older man tried to seduce him.
He claimed that while they were watching TV, Gasa put his hand on his lap, kissed him on the cheek and looked at him in a sexual manner.
Ntlauzana, who was sentenced to 30 years in prison, stabbed Gasa 12 times and dumped his body and his burnt out Jaguar near the Tugela River.