Showing posts with label Gay Defense. Show all posts
Showing posts with label Gay Defense. Show all posts

January 17, 2017

LGBT Learn Self Defense on Uncertain Times


"There seems to be an uptick with people who feel like they have carte blanche to go and act more violently toward people they don't agree with," Kmetz said. He said he took the class so that he could defend either himself or his husband, who is disabled.
Incidents such as the mass shooting at a gay nightclub in Orlando, Fla., last summer, or the torturing of a disabled youth in Chicago this month have raised the visibility of hate crimes across the country.

"We know statistically, people will be impacted by street violence at some point in their lives," Bishop said of vulnerable members of the LGBTQ community.

In 2015, more than a fifth of the 5,818 single-bias hate crimes reported to the FBI were because of the target's sexual orientation or gender identity.

"I think people are looking around and thinking now is the time to get stronger," Bishop said. "It's more of a 'let's get powerful' than 'let's be afraid' kind of place."

Tarighi asked attendees whether they were a sheep, wolf or sheepdog.

"Most of us are a sheep," she said. "There's nothing wrong with sheep," she said.

She demonstrated how "the sheep" can protect themselves by keeping their distance from strangers, or by pretending to cough or sneeze loudly and then elbowing a suspicious person approaching them from behind.

Tarighi described how she got out of a potentially dangerous situation inside a New York City subway car. When two men approached her, she said, she jumped up, pointed to her subway seat and yelled, "You're sitting on George!" and then repeated, "You're sitting on George!" pretending to be crazy.

Tarighi, a third-degree black belt in Kenpo karate, said improvisation is often the name of the game if someone gets too close.

She said besides faking "crazy," one can also pretend to have an asthma attack or use other methods to draw the attention of others or deflect the attention of a predator.

But if possible, she said, the first thing anyone should do is to "get the hell out of there." If that can't be done, she said, they need to inflict harm. "The one who creates the injury is the one who walks away."

Participants laughed as they practiced techniques such as "the finger," which involves pushing two fingers against the lower section of an attacker's throat, or kneeing someone in the groin.

Tarighi encouraged them to get over the fear of using physical force.

"If people are more comfortable with it, they'll be less afraid to use it," she said.

Passalacqua and Kmetz said the class left them in a better spot.

"I feel more empowered," Kmetz said. "If I were to get into a situation, I feel like I would have more options." Passalacqua agreed: “I feel way more comfortable."

The Baltimore Sun

July 30, 2015

A Gay Rights Defender; Ex Defense Secretary


The former defense secretary has gone further than many politicians in promoting gay rights in the military and private sphere. (Robert Gates)

Eagle Scout. Young Republican. CIA recruit. Air Force officer. CIA director. Secretary of defense.
It’s not the resume of a radical civil-rights campaigner, but Robert Gates has now integrated two of the great bastions of macho American traditional morality—first the U.S. armed forces, and now the Boy Scouts of America. In both cases, Gates pursued a careful, gradual strategy, one that wasn’t fast enough for activists. In both cases, he was careful to take the temperature of constituents. And in both cases, once he was ready to act, he did so decisively. In the end what seemed to matter most was not Gates’s personal feelings but his determination to safeguard institutions he cared about and his deft skills as a bureaucratic operator.

Before the Obama administration began moving to eliminate the military’s “don’t ask, don’t tell” policy there was barely any indication of Gates’s views on LBGT issues—though not none. In 1991, while director of central intelligence, Gates ordered an inquiry into whether CIA personnel had ever been blackmailed into espionage because they were gay. When he found no cases, he ended the practice of asking employees about their sexual orientation as part of polygraph tests. From 2002 until he took over the Pentagon in 2006, Gates was president of Texas A&M University, a famously culturally conservative school. (In 1984, students sued, successfully, to force the school to recognize a gay-student organization; the ruling effectively removed all legal prohibitions on LGBT student groups nationwide.) At A&M, Gates worked to improve student diversity overall—including racial minorities and LGBT students—and appointed the school’s first administrator specifically in charge of diversity.

Given the rapid advance of gay rights over the last decade, it’s tough to remember just how different the stage was in 2006, when Gates replaced Donald Rumsfeld as defense secretary. “Don’t ask, don’t tell” had had plenty of critics since it was enacted in 1994—President Bill Clinton himself would have preferred simply opening the military to gay servicemembers—but it was still firmly in place. The Bush administration was not interested in lifting the ban, and Gates took a cautious approach. He repeatedly told reporters that he was not reviewing or reconsidering the policy.

When, several months into his tenure, the chairman of the Joint Chiefs of Staff, General Peter Pace, said that “homosexual acts between individuals are immoral,” Gates tried to avoid discussing the comments, and said of DADT, “As long as the law is what it is, that’s what we’ll do.” (Pace, who retired in September 2007, reiterated his personal opposition to homosexuality during an exit hearing with Congress, but also endorsed gay service in the military.) When, two months later, the military ejected 58 desperately needed Arabic linguists because they were gay, Gates still said the policy wasn’t under review.

Even after President Obama was elected and Gates accepted an offer to stay on as secretary, he remained cautious. Though the president pledged to repeal DADT during his first State of the Union, Gates expressed a preference in March 2009 to “push that one down the road a little bit,” infuriating gay activists. Yet in June, he was clearly expecting the policy to end and was exploring whether “there’s a more humane way to apply the law until it gets changed.” A similar pattern held in 2010, as Gates warned Congress not to repeal DADT before he had a policy in place for the aftermath and insisted courts not make the decision. He also issued a survey on gays to servicemembers, a step that LGBT activists, who saw it as putting civil rights to a vote, disagreed with. Yet there Gates was in the fall, saying DADT’s demise was “inevitable” and testifying to Congress in favor of repeal—before the courts did it. (And that survey? It turned out the troops were totally fine with LGBT comrades.)

Once DADT was repealed, Gates moved quickly to enforce discipline and get the change implemented in the military, and shot down any hopes that soldiers, sailors, and marines who disagreed with the policy could leave their commitments early.

Gates’s push for the end of DADT never relied on the soaring rhetoric of rights and justice that people like Obama used. Gates spoke with the dry, careful language of a bureaucrat, speaking in terms of unit cohesion, military readiness, and obstacle recognition. When he indulged emotion, it was to praise soldiers risking their lives—the same language a defense secretary would use for straight soldiers. The decision was more than anything a triumph of pragmatism. Gates carefully studied the effects repeal would have on the military and decided the downsides were minimal; and he looked at the way the country was changing and realized that the policy would have to end soon, and that he wanted it to end on the Pentagon’s terms to ensure the military’s stability and long-term health.

The DADT fight offers a template for the opening to gay scoutmasters. Gates had expressed tempered sympathy for gays in scouting as far back as 1993, when he told Wichita Rotarians, “Values central to Scouting are under challenge today as never before: challenges to our belief in God, challenges from Americans who are gay. Scouting must teach tolerance and respect for the dignity and worth of every individual person, certainly including gays.”

The Boy Scouts had already begun to dismantle some of their anti-gay policies when Gates was elected president in late 2013. A lopsided vote in May 2013ended a ban on gay scouts but kept prohibitions on gay scout leaders and volunteers in place. Just as he had at Defense, Gates initially took a carefully diplomatic position. “I was prepared to go further than the decision that was made,” Gates said in May 2014. “I would have supported having gay Scoutmasters, but at the same time, I fully accept the decision that was democratically arrived at by 1,500 volunteers from across the entire country.” He said he wouldn’t reopen the decision during his term as president.

At some point in the last year, he had a change of heart.

The shift seems to reflect much the same calculus that guided Gates through the DADT decision. At the Pentagon, he had first avoided discussing repeal because it seemed too likely to create institutional instability; but once he decided that the writing was on the wall and that refusing to change was the greater risk to the organization, he moved swiftly and effectively to impose his new will. The point was to guarantee institutional survival.

In May 2015, one year after saying he wouldn’t reopen the issue of gay scoutmasters, Gates did just that. In short, he decided once again that if the institution he led didn’t change its policies now, a judge was likely to force it to do so later.

“The status quo in our movement’s membership standards cannot be sustained,” he said. “Between internal challenges and potential legal conflicts, the BSA finds itself in an unsustainable position, a position that makes us vulnerable to the possibility the courts simply will order us at some point to change our membership policy.”

Gates warned that a court order would disarm the Boy Scouts’ ability to act of their own volition, and suggested that doing anything besides opening would be an existential threat.

“I truly fear that any other alternative will be the end of us as a national movement,” he said.

Monday evening, Gates got his wish, as the BSA’s 80-member board voted to approve the change. (A smaller executive committee had already approved it.) The new policy may not satisfy everyone. Traditionalists are upset about the move, while progressives feel it doesn’t go far enough—troops that are chartered by churches and other religious organizations would still be permitted to set their own standards. Regardless, the policy marks a serious shift for BSA, and it cements Robert Gates’s place in history: as one of the least likely but most successful proponents for gay equality in institutional America.

June 7, 2014

Local Singer ‘Lovari' Responds to Pastor Manning’s Calling for Stoning of Gays


LovariWorld.Com has uploaded Jennifer Louise Lopez & Lovari's response to Pastor Manning's Homophobic Church Sign


         Jennifer Louise Lopez and Lovari respond to Pastor David Manning's homophobic remarks on the sign of Atlah World Ministries in Harlem, NYC. Originally the sign read, "Jesus would stone homos." Earlier during the year, after seeing the sign, Jennifer Louise Lopez knocked on the door of the church and said "I'm here for my stoning." They told her to come back the following day. Jennifer waited a few days and came back instead with a group of over 50 protestors, Eyewitness News, NBC News, and bloggers. In this followup video, she sits down with recording artist/actor (and one of the protestors) Lovari, as they both speak about the inaccuracies of Pastor Manning's teachings and responding to untruths spoken about her by Manning in the media.

February 9, 2014

Canada still Allows The Gay Panic Defense

An Ontario court's decision to consider 'provocation' in a murder case is a Criminal Code vestige of days gone by, says one legal scholar
“I love you.”
Robert Nicholson stumbled over to Sebastien Bouchard and kissed him on the neck.
The two were drunk, stoned and stumbling arm-in-arm down a rural road in Lancaster, Ontario. Nicholson’s nose was bleeding — he had put his hand on Bouchard’s thigh while Bouchard was driving and got a fist to his nose for the trouble. Bouchard drove Nicholson’s truck into a ditch a minute later.
So the two left the truck and wandered up the road, in the general direction of Bouchard’s house.
Nicholson’s affection for his straight friend was overflowing that night. They had been drinking all day, after all. But Bouchard brushed off his older friend’s advance and they staggered on.
But when Nicholson gave him that kiss, it was too much for Bouchard. He threw his friend to the ground and stomped on him until Nicholson stopped moving.
Bouchard then stumbled onward, back home. His mother made him a cup of tea as he washed the blood off his boots. Meanwhile, Nicholson lay there, on the side of the road, a few kilometres away from the truck they’d abandoned. His windpipe was nearly crushed. The temperature hovered around minus six degrees Celsius; it snowed lightly.
Nicholson’s body was found the next day. Police couldn’t identify it; his face was beyond recognition.
“I lost it
A jury sentenced Bouchard to life in prison in 2009, with eligibility for parole after 15 years.
At trial, his defence lawyers tried to paint a picture of a temporary lapse of control — on that drunken December night in 2005, he testified, his friend’s drunken kiss brought him back to abuse he suffered at the hands of a childhood babysitter. He snapped, he said, and didn’t know what he was doing until it was too late. He left Nicholson there, he told the jury, thinking him injured but not dying. “I know I lost it. I didn’t know what I was doing. At one point he was — he had me, he was on my side and the next point he was on the floor and I stomped him,” the transcript of his testimony reads.
The defence made the case that Bouchard was guilty of manslaughter, not murder, and that Nicholson’s advances proved the catalyst for his beating. To do so, they dug into a centuries-old provision in the Criminal Code that says that, in the case of murder, if the accused can demonstrate that an insult or act provoked his actions, he’s not guilty of murder.
The Crown fought back, pleading to the judge that such a defence is ludicrous — that it has no “air of reality.”
The judge rejected that and left the jury to grapple two questions: Did Bouchard either intend to kill Nicholson or know that his assault could have led to his death? If so, was it something that an ordinary person in his situation would have done?
On both of those questions, the judge told the jury to contemplate whether Nicholson’s kiss had a role to play in Bouchard’s actions. The jury decided that, yes, the attack constituted a murder and that, no, Bouchard did not act reasonably.
But Bouchard’s lawyer, Howard Krongold, appealed.
In September of last year, three Ontario Court of Appeal judges heard that the original judge did not properly instruct the jury.
Krongold’s case was a very technical one. He said that the judge was right to instruct the jury that they had to consider the definition of provocation in the Criminal Code: “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.”
But, he contended, the judge failed to instruct the jury that they could consider Bouchard’s past as a contributor to his state of mind at the time. Mix in pot and alcohol, Bouchard’s lawyer argued, as well as his flashbacks after being kissed by a man, and it is likely he didn’t know what he was doing. It’s what the courts call mens rea —a subjective test of the accused’s state of mind at the time.
Two of the three justices hearing the appeal agreed: the judge should have been more explicit in telling the jury that they could have considered the “provocation” in a more subjective sense, rather than just under the language in the Criminal CodeIn a ruling passed down at the end of December, they ordered a retrial.
The Crown filed notice to appeal that decision in January. That means the case will be sent to the Supreme Court, which might finally fulfill a long-held promise to axe the archaic defence. Or it might give Bouchard one more chance at freedom.
A very Victorian defence
Bouchard’s defence is almost as old as the concept of manslaughter itself.
It dates back to the 16th century, when colonial England drew up a new concept of homicide that it exported to its possessions. Back then, the code provided that any man convicted of murder would be sentenced to death, while anyone not in his right mind at the time of the killing would survive in prison, under the crime of manslaughter.
By the middle of the 19th century, the idea of provocation had emerged — the court could save the accused from his end in the gallows by deciding that his actions were born out of human frailty. The three most common situations were a “chance medley,” like a bar brawl; a husband coming home to find his wife in bed with another man; or a father discovering his son being sodomized by another man.
Eventually, rather than try to think of every circumstance where one might be provoked to kill, the courts instructed juries to consider what a “reasonable person” would have done under the same provocation — and that has essentially been the basis for that defence since 1892.
But that specific issue of sodomy as being a primally offensive act has never quite gone away.
Rather than modify the law to bring it into a contemporary context, where men no longer have dominion over their wives and where anal sex has been decriminalized, the courts widened its use. The Supreme Court, in 1986, held that the jury should take into account certain characteristics of the accused, like age, in considering whether a “reasonable person” would have acted in the same manner. By 1995, a Superior Court established that making aggressive “homosexual advances” constituted provocation for a violent stabbing — the accused, in that case, was sentenced to five years in prison.
When Ottawa and the provinces got together in 1997, they finally signalled an intent to fix the law. They surveyed as many cases as they could collect that employed provocation as a defence — they identified 115 but noted that it was only a fraction of the actual caseload.
Here’s what they found: nearly half of those cases were domestic homicides in which a man killed a woman and claimed she provoked it; six percent were cases in which a woman killed her male partner. The rest of the crimes were male-on-male, with 16 of them (14 percent of the total cases) involving a man saying that the victim came on to him.
In a consultation paper published in 1998, the working group concluded that there are only two options: reform the provocation defence or abolish it.
Reforming the act, it suggested, could remove the objectionable elements — like “the misuse of provocation in cases involving non-violent homosexual advances” — while still preserving its limited benefits.
The report was farmed out to various organizations to solicit responses. Most were hesitant to abolish the defence outright, noting that it retains a purpose: for battered women to avoid life in prison if they retaliate against their abusive husbands.
A submission from the law reform committee of the Canadian Bar Association noted that the defence has its purposes but that it was “generally supportive of the policy goal of ensuring that behaviour motivated by stereotypes of sex, race, sexual orientation, age or disability not be considered ‘reasonable’ for the purposes of the defence.”
After that, the issue seemingly never arose again on the national level. No further report was filed. The defence was never altered.
Provocation, meanwhile, has been employed consistently. Juries across Canada have regularly heard that a homosexual advance constituted a provocative or wrongful act that resulted in a homosexual’s death — a death that, under the law, does not constitute murder.
Gay panic
Kyle Kirkup is a Trudeau scholar at the University of Toronto’s Faculty of Law. He followed the Bouchard case and is preparing an upcoming paper on the provocation defence.
“What seems to be going on here is that everyone seems to proceed on the assumption that an ordinary heterosexual man may actually react violently to what the court calls a ‘wet kiss,’” Kirkup says.
“The cases where this issue comes up, it almost invariably is two men, one is gay and one claims to be straight, they drink a lot of alcohol, something happens, the gay person ends up dead — and then the accused person says, ‘He made some kind of a move on me.’ That’s the typical story you see again and again in these provocation cases.”
Kirkup points out that the Supreme Court, of late, has signalled a move to limit the use of provocation as a defence for murdering a gay person who made a homosexual advance.
It’s called “gay panic.”
In the 2010 R v Tran casewhere a husband murdered his wife’s lover, the Supreme Court unanimously held that the wife’s infidelity was not a reasonable provocation and that it was, in fact, second degree murder. Justice Louise Charron, in her judgment for the court, considered the defence and wrote that “it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance.”
But the Ontario Court of Appeal didn’t cite Tran when it considered Nicholson’s death.
Kirkup’s upcoming paper makes the case that a fundamental contradiction has emerged in Canadian law and that, if the circumstances of the Bouchard case had been slightly different, his attack may well have been labelled a hate crime. “If you successfully make provocation, you reduce what would otherwise be second degree murder to manslaughter, but then if you’ve been motivated by hatred based on someone’s identity, that can actually be an aggravating factor,” Kirkup says. “So it’s sort of a contradiction.”
Kirkup paints the section of the Criminal Code as an updated vestige of days gone by, when “manly honour” was the primary concern of the legal system.
“I always think about if we existed in a society where every time a woman received an unwanted sexual advance, she murdered the man — the streets would be littered with heterosexual men.”
Eliminating provocation
Canada remains an outsider when it comes to the provocation defence. Over the past decade, sister provisions in other Commonwealth countries have become scarce.
New Zealand abolished its provocation statute in 2009, following two successful uses of the defence, including one in which a gay man had a banjo violently rammed down his throat until he died. The jury accepted that the “homosexual advance”was a valid defence.
Several states in Australia have abolished the defence, with two others mandating that it cannot be used in the “gay panic” defence and another considering its removal.
The United Kingdom abolished the statute in 2010 but replaced it with a similar, but more limited, concept of “lack of control” — where those accused need to make the case that they had the “justifiable case of feeling wronged.” That does not include, however, adultery.
Canada is in league with the English Caribbean and parts of Commonwealth Africa in not touching the language of the law since its implementation in 1892.
While the Court of Appeals and the Supreme Court have been more stringent in allowing the defence, the lower courts have had a mixed record on allowing provocation to be applied. Until the Supreme Court offers an entirely clear ruling on its use, it appears as though that will continue to be the case. Unless, of course, the federal government steps in and changes the law.
The Justice Department, though, currently has no plans to do so.

August 14, 2013

ABA Voted to Restrict The "Gay Panic Defense"


American Bar Association delegates voted Monday to urge state and federal lawmakers to follow California's lead and restrict the "gay panic" defense, used by murder defendants who claim they were provoked by the victim's homosexual advances or transgender identity.
The lawyers' organization approved the resolution by voice vote at its convention in San Francisco. It asks legislators to adopt California-style jury instructions - telling jurors not to be influenced by the sexual orientation or gender identity of either the victim or the defendant - or to go further and ban the defense in noncapital homicide cases.
The California law, passed in 2006, was a response to the 2002 slaying of 17-year-old transgender person Gwen Araujo of Newark. The two men who admitted choking and beating her to death said they had become enraged when they learned that the person with whom they had just had sexual relations was biologically male.
The jury at their first trial in Alameda County deadlocked on first-degree murder charges. A second jury convicted them of second-degree murder in 2005, and they were sentenced to 15 years to life in prison. A year later, California legislators passed the nation's first law requiring jury instructions against bias when defendants claim provocation based on the victim's sexual orientation.
Dozens of similar cases have been reported around the nation in the last four decades, including a 2004 Fresno County case in which a man who admitted killing his date after learning she was transgender was sentenced to four years in prison.
D'Arcy Kemnitz, president of the National LGBT Bar Association and a sponsor of the resolution at the ABA convention, said the vote tells lawmakers that "legal professionals find no validity in these sham defenses mounted by those who seek to perpetuate discrimination and stereotypes as an excuse for violence.”
Bob Egelko is a San Francisco Chronicle 

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