1 Testimony of Wesley D. Bizzell, Esq. President
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TESTIMONY OF WESLEY D. BIZZELL, ESQ. PRESIDENT, NATIONAL LGBT BAR ASSOCIATION BEFORE COURTS OF JUSTICE CRIMINAL SUBCOMMITTEE JANUARY 29, 2021 Chairman Mullin, Members of the Criminal Subcommittee, Delegate Roem, I am Wesley Bizzell. My pronouns are he, him, and his. I am privileged to serve as President of the National LGBT Bar Association, which represents tens of thousands of LGBTQ+ attorneys, judges, law students, activists, and other legal professionals across the U.S. We have over 40 state and local affiliated bar organizations, including the Virginia Equality Bar. Additionally, we also have almost 100 affiliated law school student groups, including six student organizations in the Commonwealth. I’m here to convey the National LGBT Bar’s strong support of HB 2132. I’m pleased to join Judy Shepard and so many others in urging you to advance this bill to the full Committee. Some may wonder why this bill is necessary today. Unfortunately, panic defenses are not a relic of the past. This bill is necessary because even today violent preparators go free or have their charges reduced when they kill or violently assault LGBTQ+ victims, simply because of an archaic and prejudiced argument that claims that the sudden revelation or realization of the victim’s sexual orientation or gender identity provoked or excused the violence. In many instances, these are particularly brutal crimes. In one case where the panic defense was used, the victim was stabbed and slashed more than five dozen times. In another, the victim was choked with a wallet chain, drowned and then his body was doused in gasoline and set on fire. In yet another, the victim was bludgeoned with a fire extinguisher, leaving her for dead as the defendant ransacked her apartment. When he later heard her gasping for breath as she regained consciousness he beat her again with the fire extinguisher until he “killed it” as he later told the police. And, many of us are familiar with the horrific and senseless murder of Matthew Shepard, who was brutally pistol-whipped, tortured, and tied to a fence post, where he was left to die. More 1 than 20 blows rained down on him so hard that they fractured his skull a half-dozen times. Reports described how Matthew was beaten so severely that when he was found his face was completely covered in blood, except where his tears had left tracks down his cheeks. As horrific these descriptions are, they do not even begin to describe the brutality of each of these assaults. All of these defendants raised the LGBTQ panic defense in their cases and several of them were successful. So, why is this bill necessary? This bill is necessary because these and so many other horrific cases haunt our judicial system. This bill is necessary for the preservation of justice for these and other victims. It is as simple and complicated as this: LGBTQ+ people are being violently harmed and viciously murdered simply because of who they are, and the noxious LGBTQ panic defense allows their attackers to escape the criminal sentences that would otherwise be imposed on them but for the sexual orientation or gender identity of their victims. This is why the American Bar Association’s House of Delegates, at the National LGBT Bar’s urging, voted unanimously in 2013 to endorse a ban on the LGBTQ panic defense. This is why 12 other jurisdictions have enacted such a ban. Violence directed towards LGBTQ+ victims should not be justified simply because of who we are. Our identity should not be a defensible reason for assault or murder. To justify and excuse violence and murder as a result of the victim’s status as a lesbian, gay, bisexual, transgender or queer person is to deem LGBTQ lives as inherently less worthy, less human, and less deserving of justice as compared to those who do not identify as LGBTQ. The National LGBT Bar hopes this subcommittee and the Virginia General Assembly will join other legislatures that have passed similar bills on strong bipartisan votes, some of them even unanimously. We urge you to support enactment of this important legislation which will prevent violent criminals from escaping the punishment they deserve and will make equal justice under the law a living, breathing reality for LGBTQ victims of violence. Thank you. 2 ARTICLES THE TRANS PANIC DEFENSE REVISITED Cynthia Lee* ABSTRACT Violence against transgender individuals in general, and trans women of color in particular, is a signi®cant problem in the United States today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a tra- ditional criminal law defense. Nor, despite its name, is it recognized as a stand- alone defense. Rather, trans panic is a defense strategy associated with the prov- ocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender femaleÐan individual who identi®es as a woman but was thought to be male when bornÐprovoked him into a heat of passion, causing him to lose his self-control. If the jury ®nds that the defendant was actually provoked into a heat of passion and that the ordinary man in the defendant's shoes would have been so provoked, it can acquit him of murder and ®nd him guilty of a lesser offense. This Article starts by discussing the problem of violence against transgender individuals in the United States today. It then focuses upon a particular manifes- tation of this violenceÐcases in which a man kills a transgender woman with whom he was intimate or to whom he was attracted, is arrested and charged with a criminal homicide, and then asserts a trans panic defense. * Cynthia Lee is the Edward F. Howrey Professor of Law at The George Washington University Law School. She thanks I. Bennett Capers, Em Holmes, Hunter Iannucci, Kelly Strader, and Jordan Blair Woods for reading and providing extremely helpful suggestions on an earlier draft of this Article. She also thanks her colleagues Jeremey Bearer-Friend, Robert Cottrol, Alan Morrison, Anne Olesen, Dick Pierce, Steve Saltzburg, Peter Smith, Ed Swaine, and Kate Weisburd for their questions, comments, and suggestions when she presented this Article before the GW Law faculty on September 6, 2019. She thanks Nancy Cantalupo, Eve Hanan, and Alexis Karteron for providing additional helpful feedback when she presented this Article at LatCrit on October 18, 2019 at Georgia State University College of Law in Atlanta, Georgia. She also thanks her current and former Research Assistants Lisa Haight, Stephanie Hansen, Casey Matsumoto, and Katherine Yue Meng for excellent research assistance, Lesliediana Jones for additional research assistance, and Prerna Balasundarum for administrative assistance on this Article. Finally, she thanks the American Criminal Law Review at Georgetown University Law Center for inviting her to participate in its symposium on women and the criminal justice system in March 2019. Special thanks to Monica Attia, Abbe Dembowitz, Ian Bruckner, and Julie Bessler from the American Criminal Law Review for their editorial assistance and support for the ideas expressed within. Parts of this Article are adapted from Cynthia Lee & Peter Kwan, The Trans Panic Defense: Masculinity, Heteronormativity, and the Murder of Transgender Women, 66 HASTINGS L.J. 77 (2014) and Cynthia Lee, The Gay Panic Defense, 42 U.C. DAVIS L. REV. 471 (2008). © 2020, Cynthia Lee. 1411 1412 AMERICAN CRIMINAL LAW REVIEW [Vol. 57:1411 Next, this Article offers several reasons why the trans panic defense strategy is deeply problematic. First, the trans panic defense appeals to negative stereotypes about transgender individuals. Second, it legitimizes the enforcement of norms of masculinity and heterosexuality through violence. Third, it inappropriately vali- dates bias against transgender individuals when we live in a pluralistic society that should be tolerant and accepting of all individuals. The Article then addresses the normative question of what should be done to rec- tify the harms rendered when a defendant charged with murder asserts a trans panic defense. In the past, the Author was reluctant to support proposals to legislatively ban the trans panic defense. She felt that the best way to defeat the trans panic defense was not to ban it, but to allow it to be aired and then have a strong prosecu- tor explain to the jury why it should be rejected. She also argued that it was crit- ically important to eradicate the underlying structures of masculinity that encourage violence against transgender women to reduce the risk of such violence taking place and to undermine the effectiveness of the trans panic defense. She opined that the best way to achieve these goals was to educate both the public and the jury about the dif®culties transgender individuals face just trying to exist in society and make the existence of bias against transgender individuals salient to the jury. While the Author still believes in the importance of education, she now feels education alone is insuf®cient to ensure that juries reject the trans panic defense. The Article explains the Author's shift in position and concludes by examining recently enacted legislative bans on the trans panic defense and offering concrete suggestions on how legislative reform in this arena could be strengthened. INTRODUCTION On August 17, 2013, James Dixon was walking on Frederick Douglass Boulevard in Harlem with some friends when he spotted Islan Nettles, an attractive transgender woman.1 Dixon crossed the street and began chatting with Nettles, asking her for her name and where she was from.2 Soon he heard his friends 1.