Experts say it's already too late to use the panic defense Experts say it's already too late to use the panic defense

Virginia’s panic defense ban gets its first legal test. Who’s in charge of enforcing it?

RICHMOND – It’s a temporary insanity plea. When attorneys use “the panic defense,” they claim a violent panic came over their clients after learning someone’s gender identity or sexual orientation. In that “panic,” their client assaulted or killed the victim. It’s a legal defense Virginia banned earlier this year. So why is it showing up in a Blacksburg murder case?

The case stems from a death that happened May 31. According to testimony given in court, 18-year-old Isimemen David Etute said he went to a Blacksburg apartment to meet Angie, a woman he connected with on Tinder. This wasn’t a first-time meeting. He previously spent time with Angie and engaged in oral sex with them on April 10. On this night, however, Etute learned that Angie also went by another name. To their family and co-workers, Angie was known as 40-year-old restaurant manager Jerry Paul Smith.

In a June 9 hearing, prosecutors said Etute, who was at the time a linebacker on the college’s football team, told police he punched Smith several times in the face after learning they were not anatomically female. After Smith fell, Etute told police he stomped on their face and body.

The autopsy showed all the bones in Smith’s face were broke and they had several fractures in their skull. Their body was discovered the next day.

Panic Defense Brought Up 

Here’s where the panic defense comes in. During the June 9 hearing, Etute’s attorney James Turk argued it wasn’t a simple case of going to an apartment and punching someone. He claimed Etute didn’t know Smith was not anatomically a woman in their first encounter.

After that hearing, Turk blamed Smith for what happened in an interview with the Roanoke Times.

“Nobody deserves to die, but I don’t mind saying, don’t pretend you are something that you are not. Don’t target or lure anyone under that perception. That’s just wrong,” Turk said. 

But that’s exactly the argument that the bill Northam signed in March outlawed. When voting for the bill in February, House members said it puts the victim on trial, rather than the suspect.

“We’re watching the victim being put on trial,” said State Sen. Jennifer Boysko (D-Fairfax) during the Feb. 25 vote. “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.” 

And what was the intent of the panic defense ban, to stop this from being used. And by the time Etute’s case goes to trial, the court will no longer accept it.

Too Late for the Panic Defense 

The preliminary hearing in Etute’s case isn’t happening until September 23. By then, the panic defense will be illegal in Virginia. 

Even though Etute committed the murder before July, the bills’ sponsor says the important thing is the timing of the trial. 

“The law of evidence at the time of the trial is what applies, not at the time of the offense,” said Del. Danica Roem (D – Prince William). “This bill goes into effect July 1. The trial will not start for months later. That means this bill will be in effect, in full effect, by the time of the trial. And so, simply put, blaming the victim is not going to lead to a reduction in sentence.” 

That has been an issue here in Virginia previously. Lawyers have 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.

With the ban, defendants will still be able to tell their side of the story. However, they can’t use it as a justification.

“He’s just not going to be able to argue that [it] gives him a recognized legal defense,” said UVA School of Law Professor Anne Coughlin. ““He can’t introduce expert testimony about the so-called trans panic.”

How Will Virginia Enforce the Ban?

But what about after this case? Roem and Coughlin say judges are responsible for enforcing Virginia’s ban on the panic defense. Before Roem’s bill, judges had to tell juries in the Commonwealth that this argument was a recognized defense. If juries accepted it, the judge would instruct them to take it into consideration when deciding the defendant’s sentence. 

Now, judges have to be clear the Commonwealth does not recognize that defense. They’ll also have to tell them not to let that argument sway their sentencing decision. 

“By passing this bill, this is going to ensure that if that defense is in fact raised in court, that a judge would give instruction to the jury to say that it is not to influence their decision at all in terms of a guilty plea or sentence,” Roem said.