Virginia Eliminates Panic Defense After Final Debate

By Brian Carlton

February 26, 2021

Panic defense bill returns to the House for one technical vote before going to Gov. Northam.

RICHMOND-We don’t put victims on trial anymore. Multiple senators handed down that message Thursday, as the Virginia Senate approved HB 2132 by a 23-15 vote. Then on Friday, one final vote by the House sent the bill on to the governor, finally eliminating the “panic defense.” 

It’s a temporary insanity plea. Attorneys argue a violent panic came over their clients after they learned the victim’s gender identity or sexual orientation. In Virginia, defendants used the plea eight times since 1986 and it can be successful. According to a study by Prof. W. Carsten Andresen at St. Edwards University, judges and juries reduce charges in 32.7% of cases where they hear the panic defense. A first degree murder charge drops down to second degree murder and in some states, it’s the difference between a death sentence and life in prison. But more than that, as senators pointed out Thursday, this defense attempts to blame the victim for their own murder 

“We’re watching the victim being put on trial,” said State Sen. Jennifer Boysko (D-Fairfax). “This reminds me very much of the rape shield act, where a woman was asked what her sexual history was as part of the defense argument. That’s illegal to do [now]. We no longer allow someone to turn the table on a rape victim.” 

Questions Raised About Panic Defense

Not every senator agreed that the two things were the same. State Sen. Tommy Norment (R-James City County) said during his time as a lawyer, he never saw a case that used this defense. He questioned the need for this bill. 

State Sen. Adam Ebbin (D-Alexandria) pointed out it had in fact been used eight times in Virginia. In one case, 1st-degree murder charges were reduced to second degree. And as Ebbin pointed out, these were not small incidents. 

“People have used this to try and get away with pretty brutal crimes,” Ebbin said. “In one case where the panic defense was used, the victim was slashed more than five dozen times. In another, [the victim] was choked with a wallet chain, drowned and set on fire. To think that we would allow a jury to hear as evidence that the person found out the victim was of a different sexual orientation or gender identity and that is an excuse for murder is horrific to me.” 

The main dissent came from State Sen. Joe Morrissey (D-Richmond). He argued that for the first time in Virginia history, the General Assembly would be telling defendants they couldn’t use a specific defense. 

“Let’s be clear: all of us in this room believe that somebody who would attack somebody because of their sexual orientation, whether they were transgender, whether they were white, [that] is abhorrant to all of us,” Morrissey said. “That’s a given. But this bill prevents a defendant from making a defense and we are going down a slippery slope when we say that. Of course it’s going to be rejected but we don’t prevent the defendant from making that defense.” 

However, Morrissey was wrong on two points. 

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

The Two Points

This wasn’t the first time the Virginia General Assembly eliminated a defense. Up until 2008, a defendant accused of statutory rape of “a child 14 years or older” could get that judgement changed by marrying the victim. The Assembly banned that practice during their 2008 session, State Sen. Jennifer McClellan (D-Richmond) pointed out. 

“When we have found an affirmative defense to be abhorrent to public policy, we’ve gotten rid of it,” McClellan said. “What this defense does is put the victim on trial and as a matter of public policy, we shouldn’t do that.” 

Morrissey was also wrong that a fact-finder or judge would reject a “panic defense” claim. Eight times in Virginia’s history, that hasn’t been the case. Across the U.S., the same principle holds. Using the panic defense gives a defendant greater than a 1 in 4 chance of getting their sentence lowered. 

A majority of senators agreed with McClellan that it was time to end the practice. The final vote was 23-15, with State Sen. Emmett Hanger (R-Augusta) abstaining. Here’s a look at how the vote went.

Virginia Eliminates Panic Defense After Final Debate

Despite the vote, the bill had to return Friday to the House one more time before going to the governor. The Senate Judiciary Committee put in some technical amendments that House members needed to sign off on. Nothing changed in the actual bill. These amendments involved things like swapping out the word “not” for “in and of itself.”

Now Gov. Ralph Northam will provide his signature in the coming weeks, to make it official.

Brian Carlton is Dogwood’s managing editor. You can reach him at [email protected].

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