Virginia Bans the Panic Defense
Updated June 24, 2021
On March 31, 2021, Virginia became the 12th state to ban the “panic defense.” This legislative victory is a step toward accountability in cases of anti-LGBTQ+ violence, a refusal to blame victims, and acknowledgement that the legal system hasn’t always treated lives as equal. The bill, introduced by Delegate Danica Roem, passed the General Assembly earlier in the year, one of the 11 pro-equality bills signed by Governor Northam in 2021. The ban will go into effect on July 1, 2021.
What is the ‘panic defense’?
The ‘panic defense’ was a plea akin to temporary insanity that the LGBT Bar defines as “a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder.”
The ‘panic defense’ has been used for decades to lessen sentencing. For example, in November 1995, William Palmer strangled Chanelle Pickett, a Black trans woman, to death. Palmer’s attorney argued that Palmer’s reaction was justified when he learned that Ms. Pickett, a woman with whom he was sexually intimate, was transgender. Palmer only served two years on charges of assault and battery. In 2009, Allen Ray Andrade was charged with the premeditated murder of Angie Zapata, felony motor vehicle theft, felony identity theft, and a felony hate crime. The defendant’s attorney argued that his client had been “provoked” into killing Ms. Zapata. The judge in that case declined the request for a reduced charge. When discussing Virginia’s ban, Ms. Roem shared that researchers who study the panic defense testified that it has been used at least eight times in Virginia.
Numerous professional organizations have opposed the panic defense for years. The American Bar Association has denounced it since 2013. “Homosexual panic” is not recognized as a disorder by the American Psychiatric Association, as well as other medical practitioners.
Why did Virginia ban the panic defense now?
When Ms. Roem’s young constituent wrote to her to ask that she introduce legislation to ban the panic defense, she knew she had to act immediately. We could not wait one more year.
Anti-LGBTQ violence is on the rise. Last year, the Human Rights Campaign recorded the deadliest year on record since it began tracking hate crimes against transgender people. Transgender Americans face a one-in-12 chance of being murdered. At least 183 transgender or gender non-conforming people have been killed in the U.S between 2013 and 2020; many of those murders took place in the South.
This year there is a spate of legislation across the country aimed at limiting transgender American’s access to facilities, recreation, and healthcare. These laws are an attack on the rights, dignity, and safety of LGBTQ Americans, and I fear that the dangerous myths being perpetuated, some of which cast transgender people as predators from whom legislators want to “defend” girls, will spur more violence. Last year, Virginia law rejected the falsehoods disseminated by groups like the Heritage Foundation and the Alliance Defending Freedom and enacted protections for LGBTQ Virginians. This year, the General Assembly affirmed that someone’s sex, gender, gender identity, or sexual orientation is not provocation.
“When a perpetrator uses an LGBTQ+ ‘panic’ defense, they are claiming that a victim’s sexual orientation or gender identity not only explains—but excuses—a loss of self-control and the subsequent assault,” writes the LGBT Bar. “By fully or partially acquitting the perpetrators of crimes against LGBTQ+ victims, this defense implies that LGBTQ+ lives are worth less than others.”
What is covered by HB 2132?
“Homicides and assaults and bodily woundings; certain matters not to constitute defenses. Provides that another person's actual or perceived sex, gender, gender identity, or sexual orientation is not in and of itself, or together with an oral solicitation, a defense to any charge of capital murder, murder in the first degree, murder in the second degree, voluntary manslaughter, or assault and bodily wounding-related crimes and is not provocation negating or excluding malice as an element of murder.”
Read the full text at Virginia’s Legislative Information System (click to visit).
What other states have banned the panic defense?
As of June 24, 2021, the panic defense has been banned in the following states and Washington, D.C. The year the ban went into effect is noted.
California, 2014
Illinois, 2017
Rhode Island, 2018
Nevada, 2019
Connecticut, 2019
Maine, 2019
Hawaii, 2019
New York, 2019
New Jersey, 2020
Washington, 2020
Colorado, 2020
District of Columbia, 2020
Virginia, 2021
Vermont, 2021
Oregon, 2021
Maryland, 2021
The following states have introduced legislation to ban the panic defense but the legislation has not yet passed.
Wisconsin, 2019
Texas, 2020
Iowa, 2021
Nebraska, 2021
Florida, 2021
New Mexico, 2021
New Hampshire, 2021
Minnesota, 2021
Massachusetts, 2021
Pennsylvania, 2021
The information on legislation quoted above is courtesy of the LGBT Bar.
If your state has not passed a ban on the panic defense, please contact your state legislators to ask that they introduce legislation or vote to pass existing bills.
References
“2021 Legislative Successes.” Equality Virginia.
“Legislative Lunch & Learn: Ending Excuses for Anti-LGBTQ Violence.” Equality Virginia.
“The Angie Zapata Murder: Violence Against Transgender People Resource Kit.” Glaad.
The LGBT Bar https://lgbtbar.org/programs/advocacy/gay-trans-panic-defense/
Sosin, Kate. “Her death sparked Transgender Day of Remembrance. 22 years later, still no answers.” NBC News, July 15, 2020.
Srikanth, Anagha. “Virginia becomes the 12th state to ban the 'gay panic defense'.“ The Hill, April 2, 2021.
Yurcaba, Jo. “Virginia becomes 12th state to ban gay/trans panic defense.” NBC News, April 2, 2021.