Ettinger: The ‘Panic Defense’ is The Ultimate in Victim Blaming

Virginia’s General Assembly looks to eliminate the panic defense in the special session.

The House of Delegates passed HB 2132 on Friday with a vote of 58-42, beginning the process of ending the “gay/trans” panic defense in Virginia. This bill next goes on to consideration in the state Senate. Del. Roem, the bill’s sponsor, wrote in a Facebook post on Friday in celebration of this historic vote, saying:

 “Last summer, I received an email from one of my student constituents from Manassas Park asking me to ban the gay/trans panic defense, saying, ‘As a member of the LGBTQIA+ community, seeing this still legal is scary and I think anyone should be worried about this.’

Today, the Virginia House of Delegates voted 58-42 to pass my bill HB 2132 to ban the gay/trans panic defense so people can’t quite literally get away from murdering or assaulting a LGBTQ person for simply existing.

My teenage constituent in 2021 shouldn’t have to live with the same fear that I lived with as a closeted 14-year-old in 1998. Equality is constituent service. I’m grateful we got this done today.

On to the state Senate.”

A Look at Roem’s Bill

Roem’s bill would end criminal defense strategies that would claim the defendant was, essentially, temporarily insane when they attacked on an LGBTQIA+ individual. This argument isn’t successful as a standalone strategy to get a defendant an innocent verdict, but is used to supplement other evidence in an attempt to get a less severe ruling.

This argument is the ultimate victim blaming attempt: because the victim of the attack was queer, the attacker lost control and couldn’t help themselves. Hence, “panic.” 

Trans women are significantly more likely to be victims of hate crimes than any other member of the LGBTQIA+ community, and in 2020 approximately 50 trans women were killed in the U.S. At least three have been killed in 2021 so far. 

I hate focusing on trans pain over trans joy, but I think it’s important for those outside of our community to sit with those numbers. Queer people may have cute representation in a lot of popular media right now, finally, and have more rights than ever before in the U.S., but we are still vulnerable to internalized homophobia, hate, and discrimination. 

The Most Famous ‘Panic Defense’

The most famous case involving a gay panic defense was that of Matthew Shepard, the young gay man murdered in Wyoming in 1998 by two men who were charged with first degree murder after the fact. Their defense attempted to claim gay panic–stating that Shepard had made a sexual advance on one of the men, causing their violent response, but the judge refused to consider this and ruled that the attack was premeditated for other reasons. Shepard’s story brought the horrors of anti-queer hate to a greater degree of national awareness.

Various states have been banning gay panic defense laws since the American Bar Association urged governments to direct jurors to ignore this bias in 2013. California was the first, in 2014, and was followed by 10 other states and Washington, DC in the banning of gay panic defense laws. 

Virginia is on the Cusp

Virginia is on the cusp of major breakthroughs in human rights protections with this year’s legislative forecast: the restoration of voting rights to felons is likely via constitutional amendment, the legalization of marijuana and the expunging of related non-violent offenses is likely, the death penalty is on the way out. If we can add the banning of gay/trans panic defense laws to last year’s banning of conversion therapy and banning of discrimination toward LGBTQIA+ individuals in educaton, workplaces, and housing, the future of basic human rights for the queer community will be significantly more assured. 

In 2021, we wouldn’t seriously consider a rapist defending their actions by claiming loss of control of their impulses because of what the victim was wearing. Why would we allow a similarly ignorant defense to last on the books of our state’s legal code, essentially allowing anyone to plead temporary insanity as a justification for harming an LGBTQIA+ person just for existing as queer? Holding hatred accountable as such is essential for protecting the vulnerable members of our society.

The bill passes over to the Senate this coming week, where it will be up for debate and a vote. If you’re invested in getting Virginia out of the dark ages of homophobia and transphobia, you can call your state senator and express your support for HB 2132, as well as the office of Governor Northam.