Ban on so-called gay & trans “panic” defenses will become law in Virginia

“Panic” defenses that are used to excuse violent crimes against LGBTQ people because the perpretator “discovered” their gender identity or sexual orientation are set to be outlawed in the Commonwealth of Virginia.

Delegate Danica Roem (D) introduced House Bill 2132 last month, and it passed the House of Delegates. It went to the state Senate, where it passed by a vote of 23-15 on February 25 with an amendment attached, and was sent back to the House. The House voted to approve the amendment in a 58-39 vote on February 26, making the proposed bill law.

Related: Is your home state LGBTQ friendly? See how your state measures up.

The proposal will go before Virginia Gov. Ralph Northam (D), where he can formally sign it until the end of March, since the bill will come to him after the state legislature’s special session ends. If he doesn’t sign or veto it within thirty days, the bill becomes law.

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“It’s done: We’re banning the gay/trans panic defense in Virginia,” Roem tweeted with a photograph of the final digital vote.

Testimony from Judy Shepard, the mother of the late Matthew Shepard, helped move the legislation forward in the Virginia Senate’s Judiciary committee. Out & Equal Workplace Advocates, a LGBTQ advocacy organization, also provided written testimony.

The amendment submitted by the Senate extends the law further: it includes verbal “solicitation” — as in being verbally propositioned — as one of the unacceptable reasons that a defendant can no longer legally present in court.

The so-called “gay panic” or “trans panic” defenses are meant to excuse a violent response to being propositioned by someone of the same sex. The dubious defense has been used for decades to excuse violence against LGBTQ people.

“The discovery of, perception of, or belief about another person’s actual or perceived sex, gender, gender identity, or sexual orientation, whether or not accurate, is not a defense to any charge of… murder” or assault, Virginia’s proposal reads.

Still, many opponents to the bill, including state Sen. Joseph Morrissey (D), claimed banning the law would bring the state “down a slippery slope,” even though it isn’t the first time Virginia has outlawed a specific defense.

Virginia becomes the 12th state to ban the defense. Connecticut, Hawai’i, California, New York, Illinois, Nevada, Washington, Maine, Rhode Island, New Jersey, and Colorado have previously banned the panic defense. The American Bar Association has condemned the defense as well.

A similar proposal is pending in Congress that would ban “panic” defenses from being used in federal courts. Yet, 39 states still allow the supposed defense strategy in courtrooms, although 11 of those states have proposals to ban it under consideration.

Roem made history when she became the first transgender person elected to a state legislature in 2017 and soundly defeated a challenger in 2019 that attempted to weaponize her gender identity to garner conservative votes.

 

“For those wondering how often this comes up in court in Virginia, we presented eight cases and documented a ninth during committee,” Roem explained. “All of these cases, the murder/assault of an LGBTQ person was blamed on the victim by the perpetrator who hoped to play on the fears/prejudice of the judge/jury to either have a sentence reduced or dismissed. That is not nearly an exhaustive, complete list.”

“This [bill] means someone’s mere existence as an LGBTQ person does not excuse someone else and does not constitute a reasonable provocation to commit such a heat of passion attack,” Roem added.

House Bill 2132 “was requested to me by one of my Manassas Park student constituents who’s out, hoping not to have to live in the same fear in 2021 that I did in 1998,” Roem said according to WVIR. She explained on Twitter that Virginians “can’t get away with murdering/maiming someone for simply existing as an LGBTQ person.”

In a statement, Out & Equal CEO Erin Uritus said, “the ‘panic defense’ is pure victim blaming rooted in homophobia and transphobia. No one should ever be excused for violence simply because of who their victim is. By passing this law, Virginia is sending an irrefutable message that it fully values the lives and dignity of all people.”

The bans don’t always mean that lawyers can’t use LGBTQ identity as a motivating factor when defending their clients, however. Rather, such bans require judges to read post-trial instructions telling jurors to “ignore bias, sympathy, prejudice or public opinion in making their decision.”