The Trans Panic Defense

[Charlize]

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2430390

This is scary and we need to remember to be careful as well as work to remove this horrible excuse for male on transgender female violence or murder.

Hugs,

Charlize

[Ravin]

I suspect if I read the paper, it would basically say "it is not a reasonable excuse for provocation" in a very long-winded legal thinking sort of way, and the parts about explanations to jurors come down to "here is how to tell people it is not a reasonable excuse for provocation."

It mentions the ABA move towards limiting this type of defense. I will say, as a defense attorney, I would never use it. It is unethical. Full stop.

There shouldn't be any need to educate jurors of anything, because it simply should not be used. It is not a reasonable excuse for provocation.

[Guest sydney]

Thank you for posting this info. I hope this horrible excuse is made illegal to use. It's sickening that someone even came up with it in the first place.

[Carolyn Marie]

While I agree with Ravin that the defense should not be used, I am not naive enough to believe that it will not ever be. For many defense attorneys, if there is no ethical or legal reason why it shouldn't be used, and it might prove successful as a tactic, then sooner or later it will be used.

There was a time not so long ago when it was perfectly acceptable in rape trials to bring up the victim's sexual history, or to discuss what she was wearing at the time, as "provocations" that led the defendant to commit the rape. Over time, laws changed as did judicial rulings, making such tactics either unethical, illegal or both. There will come a day when the same will be true of the gay panic or trans panic defense. There may already be some states that have outlawed it, but I'm not sure.

Carolyn Marie

[VickySGV]

It is illegal to use the defense here in California. This came about partly from a case in Ventura County where a boy who was tried as an adult killed a suspected gay/Trans* fellow student with a revolver to the base of the skull. The decedent had been flirting with his killer in an effeminate way for a couple of days. The defense hung up the jury, but the decision was 10 to 2 in favor of conviction, and a plea bargain was made on that basis. Most of the jury did not buy the defense.

[Guest clearleeraines]

My two cents, Our judicial system is 200+ yrs old, It was/is a good one. 200 yrs no changes no reforms or very little. The politicians/lawers make the laws. They have learned how to use this to get elected to public office. Then they learned the wealthy would pay to get a law passed, lobbying. Now greed has a foothold. The moral majority is neither!. From big corp's and the goverment to your local city counssl!

corruption reigns, The defense, This defense was, I have very little doubt started, to defend someone of wealth! It worked, money/greed.

Our court system is swamped with crime, the system works 40+ hrs a week, cops, prosecutors, ect. They plea bargan over 90 %!

ONCE AGAIN 90%. So if you know the system, and have money, NO PROBLEM, or if you know the system and can manipulate the system i.e. file a million motions, get postponements, fire you P.D. Drag it out. They have no choice but to come at you with a DEAL! to make you go away! Just like the BAD cops and lazy prosecuters, and even worse the P.D.'S.

OUR SYSTEM IS BROKE PEOPLE!. There is no accountabilty, who questions the police? Who questions a Judge? whos got the money? I lived 3/4 of my life sheltered, a militery brat overseas, and growing up in alaska, A good life heathy life. A MANS LIFE .

I was raised with morals "christian parents" middle class, I am not a felon or a criminal UNLESS you count my remaining silent when I saw people being screwed because they are black, poor, gay, trans, I have not seen one person with wealth get screwed, EVER!

My crime? keeping silent about it, cuz i don't want you to know about me! my drugs and boose, my sexual identity, my gender identity!

THEN IT HAPPENED TO ME !!!. The police in other nations, nations much much older than this one, with greater populations than this one, with a quarter of the crime as this one, I KNOW I'VE LIVED THERE! don't even carry guns! . . . . . . .I AM BI-SEXUAL, I AM TRAN'S, I AM WHITE, I AM POOR, I AM A ADDICT, I AM NO LONGER SILENT!!!!! eh hem! superperson.

Mx Clear Lee Raines, God Bless the usa it needs it!

[Charlize]

Just a note on this defense and what it means to me. I posted it not only because of the nasty reality of how we may be perceived but because of the danger of being attractive to a cis gendered person who is also homophobic or transphobic. I have seen several posts at Laura's asking about coming out to potential boyfriends. The fact that this defense even has been tried should emphasize how important early honesty can be. We shouldn't have this potential excuse for hate in existence but until (if) things change caution is very important. Hate, alcohol, and drugs often add up to violence. Please be careful. Wacko's do exist.

Hugs,

Charlize

[Ravin]

My two cents, Our judicial system is 200+ yrs old, It was/is a good one. 200 yrs no changes no reforms or very little. The politicians/lawers make the laws. They have learned how to use this to get elected to public office. Then they learned the wealthy would pay to get a law passed, lobbying. Now greed has a foothold. The moral majority is neither!. From big corp's and the goverment to your local city counssl!

corruption reigns, The defense, This defense was, I have very little doubt started, to defend someone of wealth! It worked, money/greed.

Our court system is swamped with crime, the system works 40+ hrs a week, cops, prosecutors, ect. They plea bargan over 90 %!

ONCE AGAIN 90%. So if you know the system, and have money, NO PROBLEM, or if you know the system and can manipulate the system i.e. file a million motions, get postponements, fire you P.D. Drag it out. They have no choice but to come at you with a DEAL! to make you go away! Just like the BAD cops and lazy prosecuters, and even worse the P.D.'S.

OUR SYSTEM IS BROKE PEOPLE!. There is no accountabilty, who questions the police? Who questions a Judge? whos got the money? I lived 3/4 of my life sheltered, a militery brat overseas, and growing up in alaska, A good life heathy life. A MANS LIFE .

I was raised with morals "christian parents" middle class, I am not a felon or a criminal UNLESS you count my remaining silent when I saw people being screwed because they are black, poor, gay, trans, I have not seen one person with wealth get screwed, EVER!

My crime? keeping silent about it, cuz i don't want you to know about me! my drugs and boose, my sexual identity, my gender identity!

THEN IT HAPPENED TO ME !!!. The police in other nations, nations much much older than this one, with greater populations than this one, with a quarter of the crime as this one, I KNOW I'VE LIVED THERE! don't even carry guns! . . . . . . .I AM BI-SEXUAL, I AM TRAN'S, I AM WHITE, I AM POOR, I AM A ADDICT, I AM NO LONGER SILENT!!!!! eh hem! superperson.

Mx Clear Lee Raines, God Bless the usa it needs it!

This is not accurate in several respects. Yes, the criminal justice system needs improvement, and there are biases and imbalances, which are worse some places than others.

However, it is NOT true that the system has never been reformed. It has been many times, and continues to be.

And, while yes, there are problem people to be found in any position, from beat cops to judges, it is not true that the majority of people in these positions are not professional and don't do the best they can at it.

Even those doing the best they can often have unconscious biases which lend to something less than justice being done, and the laws themselves often structure the system in ways that do nothing about the underlying problems which contribute to crime. We criminalize things that would better be handled other ways, like homelessness and drug addiction.

When you get caught up in the criminal justice system, as either a defendant or the victim of a crime, it can seem especially unfair when you do not feel heard.

Also, plea offers many places get less favorable the longer you drag out a case and the more motions are filed, etc., the closer it gets to trial.

[Ravin]

While I agree with Ravin that the defense should not be used, I am not naive enough to believe that it will not ever be. For many defense attorneys, if there is no ethical or legal reason why it shouldn't be used, and it might prove successful as a tactic, then sooner or later it will be used.

There was a time not so long ago when it was perfectly acceptable in rape trials to bring up the victim's sexual history, or to discuss what she was wearing at the time, as "provocations" that led the defendant to commit the rape. Over time, laws changed as did judicial rulings, making such tactics either unethical, illegal or both. There will come a day when the same will be true of the gay panic or trans panic defense. There may already be some states that have outlawed it, but I'm not sure.

Carolyn Marie

The American Bar Association has come down on the side of "it's unethical" and argued why. Each jurisdiction makes its own decisions about that, though, and each bar. So it can take time for some places to catch up. I for one would withdraw from a case rather than assert such a defense, if a client felt that it's use was the only avenue for zealous defense.

[Guest clearleeraines]

My two cents, Our judicial system is 200+ yrs old, It was/is a good one. 200 yrs no changes no reforms or very little. The politicians/lawers make the laws. They have learned how to use this to get elected to public office. Then they learned the wealthy would pay to get a law passed, lobbying. Now greed has a foothold. The moral majority is neither!. From big corp's and the goverment to your local city counssl!

corruption reigns, The defense, This defense was, I have very little doubt started, to defend someone of wealth! It worked, money/greed.

Our court system is swamped with crime, the system works 40+ hrs a week, cops, prosecutors, ect. They plea bargan over 90 %!

ONCE AGAIN 90%. So if you know the system, and have money, NO PROBLEM, or if you know the system and can manipulate the system i.e. file a million motions, get postponements, fire you P.D. Drag it out. They have no choice but to come at you with a DEAL! to make you go away! Just like the BAD cops and lazy prosecuters, and even worse the P.D.'S.

OUR SYSTEM IS BROKE PEOPLE!. There is no accountabilty, who questions the police? Who questions a Judge? whos got the money? I lived 3/4 of my life sheltered, a militery brat overseas, and growing up in alaska, A good life heathy life. A MANS LIFE .

I was raised with morals "christian parents" middle class, I am not a felon or a criminal UNLESS you count my remaining silent when I saw people being screwed because they are black, poor, gay, trans, I have not seen one person with wealth get screwed, EVER!

My crime? keeping silent about it, cuz i don't want you to know about me! my drugs and boose, my sexual identity, my gender identity!

THEN IT HAPPENED TO ME !!!. The police in other nations, nations much much older than this one, with greater populations than this one, with a quarter of the crime as this one, I KNOW I'VE LIVED THERE! don't even carry guns! . . . . . . .I AM BI-SEXUAL, I AM TRAN'S, I AM WHITE, I AM POOR, I AM A ADDICT, I AM NO LONGER SILENT!!!!! eh hem! superperson.

Mx Clear Lee Raines, God Bless the usa it needs it!

This is not accurate in several respects. Yes, the criminal justice system needs improvement, and there are biases and imbalances, which are worse some places than others.

However, it is NOT true that the system has never been reformed. It has been many times, and continues to be.

And, while yes, there are problem people to be found in any position, from beat cops to judges, it is not true that the majority of people in these positions are not professional and don't do the best they can at it.

Even those doing the best they can often have unconscious biases which lend to something less than justice being done, and the laws themselves often structure the system in ways that do nothing about the underlying problems which contribute to crime. We criminalize things that would better be handled other ways, like homelessness and drug addiction.

When you get caught up in the criminal justice system, as either a defendant or the victim of a crime, it can seem especially unfair when you do not feel heard.

Also, plea offers many places get less favorable the longer you drag out a case and the more motions are filed, etc., the closer it gets to trial.

You Obviously have had no experience on defendant end ?. And what reform would you be referring too ?. Nothings really been done since "peel" and the police 1920 ?. They rotated the cops around because there was corruption then!. Have YOU ever been in a CA. State prison ?. Have YOU ever been homeless ?. I think the now viral video of the female student's violent attack speaks for it self. I was in the state system for just a short time and saw officer perpetrated crimes that make that video look innocent many times. ASK ANYONE WHO'S EVER HAD A NUMBER!!!. How creative are you with pepper spray and a baton ?. Tazer anyone ?. No one really has ANY idea, until it happens to you! I didn't. Put a second on the house, sell the car's, and find a "good" lawyer if you can ?. And by all means live with your video device, phone whatever, night and day and use it. Protect and serve. Honesty and integrity. Justice if you can afford it! Guilty till proven paid innocent. It ain't like tv people. Those who defend the system are Ignorant and pretentious and BRAINWASHED!. I now know what I took for granted, dos not exist!. ok thats my latest rant I feel better

The Clear one

[Ravin]

Yes, there has been reform. Important reforms have come both through judicial enforcement of constitutional law (cases like Gideon v. Wainwright and Miranda v. Arizona), and through legislation. Some reforms have been good, some not so good. 200 years ago there were basically just a handful of common law felonies most places, and the sentence for all of them was death, usually by hanging.

I don't have experience in California, but I actually went to law school and became a public defender after my husband got a raw deal with the criminal justice system. He took a plea for something he didn't do because he didn't want to risk 12 years in prison if he fought and lost, because his attorney couldn't be bothered to do her job and he didn't trust her with it. I decided to go to law school because I knew I could do better than what we saw (his PD didn't even show up to court a couple of times, never mind actually do a proper client interview or give him a good explanation of what he was up against as far as evidence and trial ability of his case).

There's a reason I said it can feel especially unfair if you feel unheard in the process. That has pretty obviously been your experience.

I very clearly stated that the system has problems. That does not mean it has not changed in 200 years. It has, and there are people continuing to fight for change to improve it, as well as more people working in it who mean well than who don't.

You are very right that it isn't like on TV.

[Guest Clair Dufour]

It should be noted that this defence is used on jury trials where the jury has much more leeway. Judges have to work with rule of law and precedence. Also, its often an excuse for the drug and sex trade gangs that many TG people find themselves involved in to survive.

[OnThePath]

I'm curious, what are the usually accepted causes for reasonable "heat of passion"? I personally think this wouldn't apply, because violent rage over finding out someone isn't who you thought they were? Come on now, that's not reasonable "heat of passion" in the slightest, not in my opinion at least.

[Carolyn Marie]

I'm curious, what are the usually accepted causes for reasonable "heat of passion"?

A couple of examples that come to mind include: Discovering one's spouse in bed with their lover; an angry argument over whose sports team was better (only half kidding there); or a violent argument over a traffic collision.

That doesn't mean any of these reasons excuses would fly in a court of law, but they've all been tried.

Carolyn Marie

[VickySGV]

Most "First Degree"crimes with the longest jail or even death penalty consequences require "malice aforethought" to be involved, which means a long standing hatred for their specific victim, or group of victims and they require preparation and planning to commit the crime at a specific opportunity. It is a goodly list. A legitimate defense to all of this is a Self Defense situation where you feared for your life and property and/or the life and property of another person

Trans* (Gay, LesbianPanic ) Defense is a "self defense" attempt that tries to make the victim the initial aggressor who was intent on harming the defendant in a criminal case and subjecting the defendant to great harm. The idea is that for some people, the knowledge that they had sex with a Trans* person has irreparably injured them and will forever handicap them in their community and make them targets or hatred and ridicule or even rejection from their communities. There are some areas where a man soliciting a non-trans prostitute is looked on as just a normal great guy male having fun. (To heck with his marriage.) Change the sex partner and he becomes a community outcast for being Homosexual. Pretty squirrely as you see.

By now if you are not about to make a desperate run to the toilet, you can get a picture of some really crazy ideas and misconceptions people have of Trans* people. The American Bar Association did declare that it was un-ethical for its members to use it in behalf of a client, several years ago and California added a law that makes it an illegal defense in state courts and can subject the attorney advancing it subject to discipline.