A scenario in which two women sleep together and one of them later announces she is straight could conceivably provoke a violent "heat of passion" reaction from a lesbian and lend itself to a "panic" defense in a courtroom, attorney Michael Thorman said last week.

Thorman, who represented defendant Michael Magidson in the recent Gwen Araujo murder trials, was responding to a hypothetical introduced by San Francisco District Attorney Kamala Harris during a panel discussion at "Hate Crimes: Combating Gay & Transgender 'Panic' Strategies."

The groundbreaking conference took place from July 20-21 at Hastings College of Law and featured attorneys, academics, anti-violence advocates and law enforcement discussing how best to defeat "gay panic"--an often-used "heat of passion" criminal defense tactic that claims an unwanted homosexual advance justifies a violent reaction.

About 225 people attended the conference from all over California and as far away as Atlanta, Texas, Colorado, and Florida.

The morning panel on Thursday, July 20 was entitled, "The Araujo Trial: A Case Study" and featured Thorman; William Du Bois, who represented defendant Jose Merel; and Alameda County Assistant District Attorney Chris Lamiero, the lead prosecutor in the Araujo case who eventually secured two second-degree murder convictions for Magidson and Merel. A third defendant, Jason Cazares, pleaded no contest to voluntary manslaughter after two juries could not reach a verdict in his case.

Araujo, 17, was born a boy but lived as a female since the age of 14. She met the suspects in the summer of 2002 in her East Bay hometown of Newark and reportedly became sexual with both Magidson and Merel on separate occasions. Questions about her biological sex arose and were discussed for weeks before the men confronted her, lifted her skirt to reveal male anatomy, and reacted violently at the Merel home one evening in October 2002. Araujo was beaten, struck in the head with metal objects, and strangled to death, then buried in the Sierra Foothills.

It was Thorman who used the "panic" strategy the most during both trials for the slain transgender teenager, coining the term "theft of heterosexuality" and claiming that Magidson was reacting "not to who [Araujo] was, but what she did."

At last Thursday's panel, Thorman said he did not remember referencing a "theft of heterosexuality," and that there were some statements he made about the fragility of heterosexual masculinity that he later regretted. But he maintained that withholding some information during sexual intimacy could be legally construed as provocation, particularly information related to sexual identity.

Du Bois agreed.

"My client [Jose Merel] had a real affection for [Araujo]," said Du Bois. "He experienced a personal crisis that wasn't a reaction based on male genitalia, it was that he felt he was gay as a result [of his feelings]. He was almost in love with her."

Lamiero, who maintained that Araujo was indeed a woman, agreed that she nevertheless "made some decisions in these relationships that were impossible to defend" to 12 different jurors. Thus, rather than make a case for transgender rights, "What I did, rather, was not defend it," he said, choosing instead to build a legal case for murder based upon the events and violent actions that led to Araujo's death, just as he would for anyone else.

"I didn't have anything I needed to prove; my focus was on the conduct of the defendants, not on the conduct of Gwen," said Lamiero. He did introduce testimony that Araujo lived as a female from an early age, he said, but "beyond that it was not my responsibility to focus a great deal of attention on other aspects of her life."

The packed panel was one of many offered by the conference over the course of two days.

A group of law professors opened the conference with a panel entitled, "Bias, Prejudice, and Ignorance: The Dynamics of 'Panic' Strategies."

A Thursday afternoon panel featured local transgender community leaders discussing "The Struggle for Transgender Civil Rights."

A youth panel informed audience members on where to access information about hate crimes, and how to incorporate the lessons of the conference into diversity trainings back home.

A media panel discussed how prosecutors and activists may frame a message so that reporters covering "panic" style trials are able to cover victims in a way that preserves their humanity.

A victim advocate panel included presentations from Araujo's mother Sylvia Guerrero, Alameda County victim-witness advocate Erin Osanna, and San Francisco victim-witness advocate Sean Reynolds, while an investigation panel featuring police and FBI inspectors walked audience members through the process of collecting evidence to ensure that a prosecution case is prepared for a "panic" defense.

But by far the most energetic, and at times, contentious panels were the discussions that featured interactions between prosecutors, law enforcement, and local community members, all of whom had their own opinions on queer issues and civil rights.

Attorneys and investigators who referred to transgender murder victim Gwen Araujo as "he" sometimes found themselves corrected by a roomful of strangers. And the rules of sexual intimacy sometimes took center stage during discussions about how to defend a victim of violent crime who may also have been promiscuous or made some dangerous decisions.

"We're not trying to offend you," an Orange County prosecutor pleaded with panelists and upset LGBT activists during the Friday morning session "Understanding the LGBT Communities."

The prosecutor emphasized that the more conservative beliefs he held needed to be heard so that LGBT community members could help him prosecute hate violence effectively in his hometown. A reporter in the audience agreed, adding that it has been difficult for her to cover a story about the gay victim of a violent crime given his poor choices that put his safety at risk.

Panelists, including CUAV's Tina D'Elia, activist and past Pride president Calvin Gipson, and Cecilia Chung, deputy director of the Transgender Law Center, responded with questions and scenarios of their own, while some audience members were visibly and vocally shaken by the beliefs that allies and others held.

But many in attendance said that despite the moments of discomfort, the level of honesty between people who would not normally interact was refreshing, particularly since the risks were taken for the sake of creating positive change.

"I think it showed, on one level, how civil rights activists and attorneys look at where we want the world to be, while prosecutors deal more with the world as it is," Chris Daley, director of the Transgender Law Center, told the Bay Area Reporter. "I think it would be a mistake for prosecutors to make a civil rights argument during a criminal case, because sometimes they have to acknowledge the reality of what's happening in some jurors' minds. The discussions gave us a picture of where we're at right now and what our challenges are."

Full disclosure: Assistant Editor Zak Szymanski was a participant on the media panel.