A Heat of Passion Offense: Emotions and Bias in "Trans Panic" Mitigation Claims

Abstract

In Hiding from Humanity: Disgust, Shame, and thc Law, Martha C. Nussbaum critically examines the role of emotions in our legal system. Nussbaum combines insights from child psychology. history, sociology. and legal theory to determine whether shame and disgust are reliable foundations on which to base law. She concludes that these two emotions serve as repositories of unreasonableness, mediums for abuse of minorities, and reflections of a society's current anxieties. Thus, they form a portrait of current prejudices and Yllinerabilities, and should not constitute the basis for mitigation. This Book Review applies Nussbaum's analysis to the case of Gwen Araujo, a transgendered woman killed by four of her friends. In that case, defendants attempted to mitigate the punishment for their brutal killing through a heat of passion argument called a "trans panic defense." An examination of the provocation, emotion, and reasonableness elements of a heat of passion claim reveals that trans panic defenses never justifY this type of mitigation. Nussbaum fails to address violence against transgendered individuals; however, her insights about emotion illustrate why courts should decline to instruct on manslaughter when defendants argue a trans panic defense.