Banning The Trans Panic Defense

[Jillian T. Weiss]

Cross-posted from Bilerico.com

From the Denver Post:

"Only when Andrade grabbed at Zapata's crotch did he discover the truth. But when she smiled at him and said, "I'm all woman," it drove an enraged Andrade to commit murder, attorney Annette Kundelius said. "At best, this is a case about passion," Kundelius said. "When (Zapata) smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction."

The gay panic defense, and its cousin, the transgender panic defense, have been criticized by many, and yet it still survives to rear its ugly head again and again. Cases where these defenses are raised become high profile, with prominent examples such as the murders of Matthew Shepard, Brandon Teena, and Gwen Araujo. In fact, there have been a couple of legal conferences on the issue of the gay/trans panic defense in the past several years, in which prosecutors have sought to learn about how to defeat it.

This is slightly outside my usual area of research - transgender workplace issues. I'm not an experienced criminal attorney, though I've done some criminal work in the past. And yet, the two areas are related, in that prejudice against transgender identity is the crux of the problem in both employment law and in this criminal law situation. In addition, as a transgender woman, I have been in private situations with men where it would have been very, very easy for me to wind up as a victim. I have had the thought on more than one occasion: Am I about to die? (Fortunately, I'm now married to a wonderful woman and we're together forever.) So when Bil asked me for my take on the issue, I was intrigued into writing.

The question I want to address is whether the Colorado judge in this case can and should prohibit such an argument.

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