Virginia House Rejects ‘Panic Defense’: Bill Would End Longtime Practice

By Ashley Spinks Dugan

February 5, 2021

House passes HB 2132, now it heads to the Virginia Senate on Monday.

RICHMOND – In Virginia, a victim can currently be blamed for their own murder. Known as the “panic defense,” the defendant claims that a violent panic came over them once they learned the victim’s sexual orientation or gender identity. 

It’s a temporary insanity plea, a way to get charges reduced and one that’s been used 104 times in the U.S. since 1970. And at times, it’s successful. According to a study by Prof. W. Carsten Andresen at St. Edwards University, charges get reduced in 32.7% of cases where the panic defense gets introduced. One member of the Virginia General Assembly wants to eliminate the practice here in the Commonwealth.

Personal Experience Shaped Legislation

For Del. Danica Roem (D-Manassas Park), House Bill 2132 is personal. As a transgender woman, Roem knows the deep-seated fear of your very identity being a potential threat to your safety. She described one particular incident to demonstrate the point.

It was November 2013, and Roem had gone out for a night of dancing with a group of girlfriends, she said. 

“I was really nervous going out because they wanted to go to a straight club,” Roem said. 

While there, she said, she hit it off with a man and, as 20-somethings are prone to do, began flirting. She noticed the man’s friend watching her closely from across the table. 

“I start to see him get visually agitated,” she said. 

Soon after, her friends hurried her out of the bar and into their car. They told her the situation was “about to blow.” 

“You realize really quickly that as a trans woman, you don’t have the same luxury necessarily, or the same privilege, to just be out at a bar,” Roem explained. “Because the second someone determines your gender identity before you reveal it…it can get violent.” 

Transgender people face disporportionate risk of sexual violence. Nearly half of transgender people are sexually assaulted during their life. And the epidemic of fatal violence against trans women of color in particular is well-documented

Subjected to Violence ‘Two Times Over’ 

Roem introduced the bill to stand up for her constituents. But she’s also sponsoring it on behalf of people whose lives have already been lost to LGBTQ+-related hate crimes. 

Matthew Shepard is one of those people. 

Shepard was a student at the University of Wyoming who was robbed, tied to a fencepost and beaten. Shepard was gay, and his attackers tried to leverage the gay panic defense in their trial. That attempt was unsuccessful, but as evidenced by Andreson’s study, the defense does work at times. 

Roem said a “successful” use of the gay panic defense can lead to charges being reduced or thrown out entirely. Success in this context, she said, means the prevention of “the administration of justice.”

“It is saying that just by existing as an LGBTQ+ person—that is adequate provocation for someone to attack you,” Roem explained.

Shepard’s mother, Judy Shepard, who since her son’s death has become an advocate for LGBTQ+ rights, testified in support of the bill when it was considered in a Virginia subcommittee late last month.

She said leveraging the gay panic defense subjects a victim to violence “two times over.” 

The defense suggests that “someone’s identity not only explains but excuses the loss of self-control,” Judy Shepherd said. “A hate crime victim’s very identity simultaneously becomes the reason for their murder and the exoneration for their murderer.” 

She ended her testimony by proclaiming “It’s time for Virginia to close this legal loophole.” 

Nationwide, only 11 other states have done the same. 

RELATED: Supporters Ask General Assembly to Legalize Marriage Equality

Minority Protections For Whom? 

Roem’s bill is meant to protect all members of the LGBTQ+ community, who are disproportionately at risk for violence when compared with the general population. However, Roem pointed out that the panic defense is often invoked by white male perpetrators of crimes against trans women specifically. The cultural discomfort with LGBTQ+ people can manifest in harmful ways on juries, Roem said. 

“There are enough judges and people who serve on juries all throughout Virginia, who could be sympathetic to someone who attacks a gay or trans person,” she explained.

That’s why HB 2132 is so important: it keeps the gay panic defense from even being introduced in court. Juries never hear it, so they can’t sympathize with it.

Willa Brown said the political debate about protecting minority rights in this context is well-worn. Brown has a PhD in gender history from the University of Virginia, and now teaches in the writing program at Harvard University.

“People don’t want to be told what to do and what to think,” she said of those with regressive views on the LGBTQ+ community. “The problem is, people are dying.”

Brown said a panic response to encountering an LGBTQ+ person who otherwise has done nothing to harm you occurs “because culturally, we have not done the education and have not done the work we need to do” to root out homophobia. Until we do, she said, taking steps like eliminating the gay panic defense in criminal trials helps protect a vulnerable community.

By a 58-42 vote, the Virginia House passed HB 2132 on Friday. It was referred to the Senate’s Committee on the Judiciary, where it’ll either be heard next week or in the upcoming special session.

What Can I Do? 

Allies of the LGBTQ+ community can call their legislators to express support for HB 2132 or similar legislation in their own state. LGBTQ+ people can also access support by finding a center in their community.

Organizations like Lambda Legal advocate for full, equal civil rights for LGBTQ+ people, and can help support those who have been discriminated against because of their identity. Equality Virginia serves residents of the Commonwealth specifically and can connect LGBTQ+ folks with legal advice, among other resources. You can reach Equality Virginia at (804)-643-4816 or here at their website. 

Ashley Spinks Dugan is a freelance reporter for Dogwood. You can reach her at [email protected]

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