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When a heterosexual man is charged with murdering a transgender woman with whom he has been sexually intimate, an increasingly common defense strategy is to assert what has been called the trans panic defense. The defendant claiming trans panic will say that his discovery that the victim was biologically male (when he thought the victim was biologically female) provoked him into a heat of passion and caused him to lose his self-control. If the jury finds that the defendant was actually and reasonably provoked, it can acquit him of murder and find him guilty of the lesser offense of voluntary manslaughter. Claims of trans panic are troubling because they appeal to stereotypes about transgender individuals as sexually deviant, abnormal people. In August of 2013, the American Bar Association passed a resolution to limit the use of gay panic and trans panic arguments.

In the attached article, which is approximately 23,000 words, including footnotes, Cynthia Lee and Peter Kwan examine the cultural structures of masculinity that may lead a man to kill a transgender woman with whom he has been sexually intimate. Building on Professor Angela Harris’ important work on male-on-male violence, we argue that violence by men against transgender women is a type of gender violence that has not received the attention it deserves. We use masculinities theories to unpack the possible motivations behind the claim of trans panic. We also discuss how structures of heteronormativity and masculinity as well as the doctrine of provocation itself can encourage the jury to find that the defendant who claims trans panic was reasonably provoked. We argue that in addition to educating jurors about the discrimination and violence faced by transgender individuals because of their chosen gender identity, prosecutors should educate jurors about the structures of masculinity that make trans panic arguments appealing. We also argue that the current understanding of reasonableness in provocation doctrine — reasonableness as that which is typical — is misguided. We suggest reasonableness is better understood as a normative limitation on the provocation defense. Accordingly, the jury should assess not just whether the average man in the defendant’s shoes would have been provoked but also whether it was normatively appropriate for the defendant to be so provoked.

GW Paper Series

GWU Law School Public Law Research Paper No. 2014-10; GWU Legal Studies Research Paper No. 2014-10

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