The Gwen Araujo Justice for Victims Act, Assembly Bill 1160, which seeks to limit the “gay panic” or “trans panic” defense in murder trials, passed the Assembly Public Safety Committee by a 4-2 vote on Jan. 10. If the Equality California-sponsored bill passes the Legislature and is signed into law by Gov. Arnold Schwarzenegger, it would amend jury instructions to state that the use of societal bias, including panic strategies, to influence the proceedings of a criminal trial is inconsistent with the public policy of California.

“California has a powerful law that enhances the penalties of criminals who commit hate crimes,” said Equality California executive director Geoffrey Kors. “The panic defense all but invalidates this law by reducing sentences due to the hate that the defendant had for his or her victim.”

The panic defense has been used in trials involving criminal acts committed against people based on their sexual orientation or gender. The accused person claims they went into a temporary rage upon finding out the person they were either involved with romantically or sexually was a member of the same sex.

The existing definition of voluntary manslaughter would be modified by the bill to prohibit defendants from contending that they were provoked to murder by discovering the victim’s disability, gender, nationality, race, ethnicity, religion or sexual orientation.

“We should not allow criminal defendants to blame their victims,” said Assembly-meber Sally Lieber, D-San Jose, who first introduced AB 1160 in February. “We prohibit discrimination based on race, religion, gender and sexual orientation in nearly all areas of public life. Why should we allow killers to use bias and intolerance as a justification for murder?”

The legislation was named in memory of Araujo, a 17-year-old transgender woman from Newark, Calif., who was attacked and killed in October 2002. Attorneys for the defendants argued that their clients flew into a panicked rage when they learned that Araujo was biologically male after they had had sex with her. The first trial ended in a deadlocked jury.

A retrial took place last September, and after seven days of deliberation, the 12-person jury rejected the gay panic defense and found Mike Magidson and Jose Merel guilty of second-degree murder. The jury deadlocked 9-3 on the same charge for a third defendant, Jason Cazares. Under a plea agreement, Cazares pleaded no contest to voluntary manslaughter. According to prosecutors, he will serve no more than six years in prison. His sentencing is scheduled for Jan. 27. Cazares claimed he was outside the house when his friends killed Araujo, and only helped bury her body.

Jaron Nabors, a fourth defendant charged in the case, pleaded guilty to voluntary manslaughter in exchange for his testimony against the others. He is expected to receive an 11-year prison sentence, according to his deal with prosecutors.

Christopher Daley, director of the Transgender Law Center in San Francisco, said AB 1160 will head to the floor of the Assembly next week. Daley expects the bill to make the Senate Public Safety Committee and the Senate floor by this summer.

“We’re hopeful. Without a doubt we’ve seen a lot of advancements within LGBT civil rights in California in the last five years,” Daley said. “It’s the first time it’s being tried in this country. Any time you do that you’re going to hit a little bit of drag along the way, just because it’s something new.”

Autumn Sandeen, co-chair of San Diego’s Transgender Community Coalition (TCC), said the group unanimously supports AB 1160. She said the TCC plans to canvass other groups and organizations in San Diego, and talk to all state representatives about the importance of the bill.

“I find it abhorrent that the gay panic defense treats victims of hate crimes as victimizers engaged in deception,” Sandeen said. “… The perceived ‘deception’ factor of the gay panic defense really troubles me; it defines all transgender people as deceiving others by expressing a gender that doesn’t match the one of their natal sex.”

Another case in California outlined how a panic defense can be used to achieve the minimum sentence for a heinous crime. In 2004 in Fresno, Joel Robles, a transgender woman, was stabbed 20 times by Estanislao Martinez. Under police questioning, Martinez said that, after discovering Robles was not biologically female, he stabbed her multiple times in panic before jumping out of a window.

Martinez claimed he suffered from “trans panic,” and the Fresno district attorney accepted a plea of voluntary manslaughter. In August, Martinez received a four-year prison sentence for the murder.

Sandeen called Martinez’s sentence “incomprehensible” and said his prosecutors used tactics to portray Robles as “deceitful” and responsible for her own death.

“It’s incredible to think about in this day and age – the gay panic defense indicates that all of us GBLTQ people are somehow so heinous that our killing is justifiable when our sexual orientation or gender identity catches a homophobic or transphobic person off guard,” Sandeen said.

TCC’s other board chair, Connor Maddocks, said he hopes AB 1160 will eventually pass. He said the gay panic plea puts the victim in the role of the criminal, proliferating society’s view that anyone who is different is deemed less equal.

“Our country has become more and more a society of people relinquishing their personal responsibility for their own actions,” Maddocks said. “It is never OK to hurt another human being, and handing out less severe punishments merely based on the victim’s personal lifestyle sends a message to society as a whole that violence against certain groups is OK – that full penalty of the law applies only to those in the perceived mainstream group of Americans who hold a certain status.”

M.E. Stephens, a Center board member and civil attorney, said that although AB 1160’s intentions are in the right place, she is concerned about limiting the ability of someone accused of a crime to defend themselves.

“I think this bill steps over that line. Thankfully, juries in California haven’t done what juries in other states have apparently done in connection with this panic defense,” Stephens said. “I think juries in California get it. They know hate when they see it…. Given that that’s the case, I, as a civil lawyer, would be really concerned about a bill like this one that limits the ability of someone accused of a crime to fully and completely defend themselves, even if their defense turns my stomach.”

Daley said many of the concerns related to AB 1160 are misplaced. He said the bill does not have the ability to change the evidence code and does not politically change anything related to the statutory penal code.

“I think that’s a very real concern, but there’s nothing about … this bill, as written, that in any way, shape or form impacts a defendant’s ability to do anything other than to rely on stereotypes against transgender people to reduce their own culpability,” Daley said. “All this bill does, it says that as a state we don’t believe a defendant should be able to rely on bias against transgender people to be held less culpable for a murder than if their victim was not transgender, or gay or whatever the situation might be.”

California Attorneys for Criminal Justice, the country’s largest statewide organization of criminal defense lawyers and allied professionals, officially opposed AB 1160. They issued a statement for a Jan. 10 Assembly hearing that reads: “The right to testify in one’s defense is constitutionally protected and is a cornerstone of a balanced administration of justice. As part of their testimony, criminal defendants regularly explain their mental state during the commission of offenses. This testimony is invaluable to juries who must decide whether the requisite elements of criminal intent existed at the time of an offense. Unfortunately, this bill impedes the introduction of this evidence by requiring a separate evidentiary hearing and expanding the authority of judges to exclude this testimony.”

Daley said AB 1160 would do nothing to affect a person’s ability to demonstrate through evidence that they are unable to stand trial.