If I've learned anything since Gwen's murder, it is that hope alone is not enough. Each of us who hopes to live in a state where our families are protected needs to work toward making California that place... None of us can change the way the world was on Oct. 4, 2002 [the day Gwen Araujo was beaten to death]. But each of us now has an important role to play in creating a state where we can celebrate more birthdays and commemorate fewer murders.Sylvia Guerrero, the mother of murdered trans teen Gwen Araujo, commenting on the Gwen Araujo Justice For Victims Act
When people who don't conform to societal sex and gender norms are victims of violence because of how they express gender, those who perpetrate the crimes frequently blame the victim. We saw this blame the victim defense used at the Gwen Araujo murder trial where two of the killers received 2nd degree murder convictions, and two of the participants in the killing plead to lesser charges. Hate crime charges were filed for this Newark, California crime, but no one was found guilty of, or pleaded to, committing a hate crime.
We saw this too in the 2005 killing of Joel Robles. Estanislao Martinez admitted stabbing Joel Robles 20 times with a pair of scissors after finding out the victim was a trans woman; no hate crime charges were filed. Martinez plead to voluntary manslaughter; with the Fresno, California District Attorney's Office agreeing that Martinez to be sentenced to four year for the killing -- three years for the killing, and one year for using a knife. The Fresno Bee cited legal experts as saying the prospect of a "gay panic" defense that blames the victim for provoking the violence as the reason for the plea deal and light sentence.
I saw this "blame the victim" defense use first hand at the 2009 Angie Zapata Hate Crime Murder Trial, having covered the trial from the Greeley Colorado courtroom for Pam's House Blend.
Due to the legal outcomes of the Gwen Araujo and Joel Robles killings, California enacted the Gwen Araujo Justice For Victims Act. Per Equality California's Fact Sheet for the act:
"In order to dissuade the use of appeals to prejudice and bias in an attempt to gain acquittal, a favorable plea or a reduction of sentence, this bill would allow a party to a criminal trial or proceeding to request that the court instruct jurors not to allow bias based on sexual orientation, gender identity or other protected bases to influence their decision. It would also direct the Office of Emergency Services to develop materials for city and county prosecutors explaining how to prevent bias from affecting the outcome of a trial. In conjunction with hate crimes legislation, this bill makes an important stand that bias and hate will not be tolerated in California."
This doesn't mean that a defense team can't employ a "gay panic" or "trans panic" defense that blames the victim for provoking the violence against victim, it means that if such a defense is employed, the judge will instruct the jury that bias based on the sexual orientation and/or gender identity -- or based on any other protected class that a crime victim may have belonged to. In California, in other words, jurors aren't legally allowed to use bias against a protected class of people to excuse violence by a perpetrator that's based on a victim's membership in a protected class.
This "blame the victim" defense is being employed by the defense team for Brandon McInerney -- the admitted killer of Larry King.
(Larry King was a 15-year-old killed in Oxnard on February 12, 2009 because of his gender expression. Brandon McInerney was 14 at the time of the killing, and is being tried as an adult for the homicide -- The National Center for Lesbian Rights and the Transgender Law Center both, in my opinion, correctly objected to McInerney being tried as an adult.)
According to the Los Angeles Times article Oxnard School's Handling Of Gay Student's Behavior Comes Under Scrutiny; (subtitled "Teachers Testify At Brandon McInerney's Trial That Administrators Ignored Warnings That Fellow Student Larry King's Feminized Attire And Taunting Behavior Were Causing Problems"):
It wasn't just that King, 15, had begun wearing makeup and women's spiked-heeled boots [to E. O. Green Middle School], witnesses testified. It was that he seemed to relish making the boys squirm at his newly feminized appearance and was taunting them with comments like "I know you want me.""They wanted to beat Larry up for what he was doing to them and they came to me because I wanted to keep them out of trouble," E.O. Green teacher Jill Ekman testified. "I told them that I would work on getting assistance from the office and we would work this out."
...How school officials handled King has emerged as a major theme of McInerney's defense attorneys, who acknowledge that the boy pulled the trigger but say that he was pushed to the breaking point by King's taunts.
Kristina Wertz, the Legal Director of the Transgender Law Center, stated the following about the recent developments in the case:
The implication that Larry was somehow responsible for his own death because of his perceived sexual orientation or gender identity is outrageous. The Gwen Araujo Justice for Victims Act allows the Court to instruct the jury to not let societal bias weigh in on their decision. We hope that the jury in this case will be able to see through the attempts to prey on their worst instincts and assess the case based on the fact.
According to a separate Los Angeles Times article Prosecutor Seeks To Quash 'Gay Panic' Defense In Oxnard Slaying, the prosecutor in the case fully intends to ask the judge to invoke the Gwen Araujo Justice For Victims Act in his final intructions to the jury.
I hope, along with Kristina Wertz, that the jury pays close attention to this particular jusry instruction; this is exactly the kind of "blame the victim" defense that the Gwen Araujo Justice For Victims Act was meant to address.