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By: ELIZABETH WEILL-GREENBERG COMMENTS
 
Last August, when Estanislao Martinez, then 23, discovered that the person he went home with — 29-year-old Joel Robles — was a transgendered woman, he stabbed Robles 20 times, jumped out of the window and was found walking naked along a highway, according to police.
Police discovered the victim’s body inside Robles’ Fresno apartment on Aug. 15, 2004, according to police.
Robles often went by the male name, Joel, according to California gay rights activists.
Martinez, now 24, claimed he suffered from “trans panic” and, to the surprise of the transgender rights activists, the Fresno, Calif. district attorney accepted a plea in the case. Martinez received a four-year sentence for voluntary manslaughter. He was sentenced to three years for killing Robles and one year for using scissors as a weapon, according to the Fresno Bee.
“What message does that put out about the trans community?” said Christopher Daley, director of the Transgender Law Center. “It raises the risk for trans women in that community.”
While Robles’ case can’t be changed, Daley hopes that the plea will “serve as a flashpoint for district attorneys around the state to look at this issue.”
Some offices already have, like Georgia’s Fulton County District Attorney’s office, which held the first ever symposium on gay panic earlier this year, called “Defeating the Gay Panic Defense.” It was inspired, in part, by the death of a gay colleague; his killer employed the gay panic defense and was acquitted.
Gay panic has traditionally been defined to mean that a “defendant’s latent homosexuality caused his violent reaction to a gay man’s advance,” according to a piece on trans panic in the Boston Third World Law Journal by Victoria Steinberg.
Trans panic is a variant of this strategy, with the defendant claiming, “his violent acts were triggered by the revelation that another person, sometimes with whom he has been sexually involved, is transgendered,” she explained.
Gay panic or trans panic are not defenses that completely exonerate a defendant, legal experts explained. Rather, they are used as mitigating factors to lessen the severity of the punishment or charge — often from first-degree murder to manslaughter. Neither is a recognized legal defense like self-defense or insanity, they said.
“Most cases invoking Homosexual Panic Disorder as a defense are really insanity defenses based on Acute Aggression Panic Disorder, a different disorder in which the person suffers from a predominating aggressive drive,” wrote Peter Nicolas, a law professor at the University of Washington, in his article, “‘They Say He’s Gay’: The Admissibility of Evidence of Sexual Orientation.”
Homosexual Panic Disorder derived from psychiatrist Edward J. Kempf during World War I. It lost its medical legitimacy when homosexuality was removed from diagnostic books as a mental disorder.
“According to Kempf, there are two character traits required for a diagnosis of Homosexual Panic Disorder: the individual must have a pronounced fear of his own homosexuality, and this terror must coexist with the individual’s fear of heterosexuality,” Nicolas wrote.
However, unlike Homosexual Panic Disorder, many defendants who employ the gay panic or trans panic strategy do not claim to be gay. Also, Kempf found that his subjects became self-loathing and withdrawn, not violent.
Gay panic and trans panic have no medical basis, according to Matthew Weissman, a clinical psychologist based in Washington, D.C., who specializes in sexuality.
“There is no such thing as gay panic or trans panic in any kind of professional manual,” he said. “It’s primarily a construction of the legal profession.”
He added that a person who commits a violent act with no rational provocation may suffer from psychosis or another type of mental disorder.
“Whenever I hear about people who panic and become violent you need to look at the underlying personality,” Weissman said. “Because most people coming home with the wrong person, they excuse themselves.”
Ruthann Robson, author of “Lesbian (Out)Law: Survival Under the Rule of Law” and an expert in lesbian legal theory, said that gay panic or trans panic should be considered by the courts in the same way they weigh any irrational reaction but it should not be considered a reasonable response.
“It can explain your state of mind,” she said. “It should be put in the same category as a person who is troubled by aliens or people who wore blue shirts.”
She continued: “When we say something is a defense it means a reasonable person would justifiably be panicked by being close to a gay person.”
Gay panic and trans ...
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