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ABA adopts policy to curtail use of "gay panic" defense

WASHINGTON — The American Bar Association adopted policies relating to the “gay panic” defense, genocide and mental health when the association’s policymaking body met during the 2013 ABA Annual Meeting in San Francisco.

On an issue of particular interest to the LGBT community, the ABA urges action to curtail use of the "gay panic" defense:

RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Such legislative action should include:

(a) Requiring courts in any criminal trial or proceeding, upon the request of a party, to 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; and

(b) Specifying 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.

The meeting of the House of Delegates — made up of 560 members representing state and local bar associations, ABA entities and ABA-affiliated organizations — marked the culmination of the Annual Meeting.

During the two-day session, former Secretary of State Hillary Clinton received the ABA Medal, the association’s highest honor. Attorney General Eric Holder also addressed the HOD, announcing major changes to Department of Justice policy regarding mandatory minimum drug sentences.

The House approved six recommendations sponsored by the Criminal Justice Section regarding the “gay panic” defense (113A), youth in the juvenile justice system with mental health and substance abuse disorders (113B), child abuse and neglect laws (113C), the re-examination of strict liability offenses (113D), plea agreements that waive a criminal defendant’s post-conviction claims on various topics (113E), and the ABA Criminal Justice Standards on Fair Trial and Public Discourse (113F).

The Section of International Law won HOD support for three resolutions urging countries not to apply statutes of limitations with respect to genocide, crimes against humanity and serious war crimes (107A); encouraging the establishment of a network of U.S. federal and state judges to facilitate education and communication among judges regarding the interpretation and application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (107B); and recognizing that U.S. common law is not an appropriate basis for refusing to confirm or enforce arbitrational awards (107C).

Resolution 101 supports the rights of all Americans, particularly veterans, to access adequate mental health and substance use disorder services.

The House also adopted Resolution 117, which urges governments to promote the human right to adequate housing.

Additionally, the HOD adopted resolutions to:

* Urge Congress to enact the Supplemental Security Income Restoration Act of 2013 (100B).

* Approve the Uniform Prevention of and Remedies for Human Trafficking Act (102).

* Condemn unauthorized, illegal intrusions into lawyer and law firm computer networks (118).

ABAnow.org provides information on all ABA policies considered at the House of Delegates meeting.