November 12, 2014 By Wallin & Klarich

Defense attorneys can be a creative lot, and that has often led to a cynical view of the legal profession. In 1978, San Francisco Supervisor Dan White murdered Mayor George Moscone and fellow Supervisor Harvey Milk. White had been known to be a fitness fanatic, but prior to4577789974_a5f85fb2b4_o.jpg the killings, had become depressed. His defense team presented testimony from a doctor that his diet consisting of Twinkies and other junk foods was evidence of his depression. The court found that his depression diminished his capacity, and instead of murder, White was convicted of voluntary manslaughter. The public outrage that followed led to the defense becoming known as the “Twinkie defense.” 1

In 2013, a Texas judge sentenced a teenager to probation for drunk driving after he was involved in an accident that killed four people and injured 11 others. His lawyer convinced the judge that his teenage client suffered from “affluenza,” a condition that prevented the teen from understanding the consequences of his actions because he had been spoiled by his parents’ wealth and privilege. 2

The End of the “Gay Panic” Defense

California has decided to put an end to one of these “creative” defenses. The “gay panic” defense allowed a defendant to claim as a defense to murder or assault that an extreme fear of gay, lesbian, or transgender persons was to blame for their violent outburst.

Recently, Gov. Jerry Brown signed Assembly Bill 2501 into law, which amends California’s voluntary manslaughter law under California Penal Code Section 192. Voluntary manslaughter is also known as “adequate provocation” murder, meaning that it is the unlawful killing of a person during a sudden quarrel or heat of passion. In order for the defendant to not be convicted of murder, the defendant must have been provoked by the victim in a manner that would cause the average person in that situation to be unable to control their rage and think before acting.

In the past, “gay panic” was considered to be sufficient for the average person to become enraged and act violently. As of January 1, 2015, the new law eliminates this defense by stating that the defendant learning about the victim’s sexual orientation or gender identity is not a reasonable provocation, including in situations where the victim makes an unwanted sexual advance toward the defendant. The law also states that it does not matter whether the defendant and victim had any sort of previous sexual or romantic relationship. 3

In addition, the law defines gender as “a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.” 4 This is key to eliminating the “gay panic” defense in cases where the attack allegedly happens because the defendant discovered that the victim was a male by birth but a female by appearance, or vice versa.

What Is the Effect of Ending This Defense?

This law means that it is no longer considered acceptable or reasonable in California for a defendant to claim that he or she was provoked into violence after learning that someone else is gay, lesbian, or transgender. In other words, there are still many reasons persons could claim they were provoked into killing another person, but the victim’s gender identity or sexual orientation cannot justify this defense being successful.

Contact the Defense Attorneys at Wallin & Klarich to Learn More

Though the legal landscape is always changing, there are still many valid defenses available if you or someone you care about has been charged with a crime. That is why you need an 4%20partners%20hi%20res.jpg
experienced, aggressive, and creative attorney at your side to guide you through the legal system. At Wallin & Klarich, our attorneys have been successfully defending clients against criminal charges for more than 30 years. Let us help you, too. Contact us today for a free, no obligation consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in criminal law near you, no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

1. []
2. [Dana Ford, “Texas teen Ethan Couch gets 10 years’ probation for driving drunk, killing 4,”, December 12, 2013, available at]
3. [Cal. Pen. Code §192(f)(1): “For purposes of determining a sudden quarrel or head of passion… the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.”]
4. [Cal. Pen. Code §192(f)(2). ]

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