See below for good information from Del. Danica Roem, top-notch legislator and reporter, who always dots her “i”s and crosses her “t”s. The story she references is Killing of Smith called ‘irrational,’ defense called discriminatory (“A suspended Virginia Tech football player accused of killing a gay man has said he became enraged after discovering the person he had met for a sexual encounter was male.”)
Throughout this last week, a number of people have asked me some variation of whether my bill HB 2132 to ban the LGBTQ+ panic defense that we passed this year will apply to the high-profile Blacksburg murder case that’s been all over the news.
A: Yes.
First, just so we’re all on the same page because I’ve seen some people quote the wrong version of this bill: This is what the final version of my bill that the governor signed into law actually states:
A. 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, or voluntary manslaughter and is not in and of itself, or together with an oral solicitation, provocation negating or excluding malice as an element of murder.
B. Nothing in this section shall be construed to prevent a defendant from exercising his constitutionally protected rights, including his right to call for evidence in his favor that is relevant and otherwise admissible in a criminal prosecution.
§ 18.2-57.5. Certain matters not to constitute defenses.
A. 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 brought under this article.
B. Nothing in this section shall be construed to prevent a defendant from exercising his constitutionally protected rights, including his right to call for evidence in his favor that is relevant and otherwise admissible in a criminal prosecution.
https://lis.virginia.gov/cgi-bin/legp604.exe…
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Next, to explain why the answer is “Yes,” here is a quote from Delegate Mike Mullin, a prosecutor for the City of Hampton who chairs the House Courts of Justice Committee – Criminal subcommittee:
“The law of evidence at the time of the trial is what applies, not at the time of the offense.”
To break down the timeline:
Jan. 12: I filed HB 2132 to ban the LGBTQ+ panic defense.
Feb. 25: It passed the General Assembly.
March 31: The governor signed it into law.
May 31: The murder.
July 1: The bill goes into effect.
Some time well after July 1: The trial for the murder.
As a newspaper reporter-turned-legislator, I check my facts and verify what I’m told so I know it’s accurate. So I called two members of the House Courts of Justice Committee and my local Commonwealth’s Attorney. All three agreed it’ll apply.
For my fellow scribes: If you went to journalism school like I did at St. Bonaventure University Jandoli School of Communication, your professors likely told you time and time again for 4+ years that you need multiple sources to confirm information — ideally, three or more.
That’s why I made sure I talked to three elected officials who practice law — two prosecutors and one defense attorney — before writing this. Delegate Mullin is also one of the chief co-patrons of HB 2132 and the bill went through his subcommittee, so he knows the details of the legislation thoroughly as well as what laws we pass that affect trial procedure and what laws affect the substance of the case.
As noted above, the defendant has a constitutional right to present evidence to help make his case, so this doesn’t affect his ability to speak in court. What it does do though is ensure that if the LGBTQ panic defense is invoked, the judge will have to issue a directive to the jury to not allow it to influence their decision. Therefore, it’s a procedural law affecting the conduct of the trial itself so it will be in full effect once the trial begins.
I filed this bill because a 15-year-old out student constituent of mine from Manassas Park requested it last year. The LGBTQ panic defense is designed to play on a supposed anti-LGBTQ bias and prejudice of a judge and/or members of a jury by blaming the victim for their own assault or murder. We documented a number of cases in committee where this defense led to reduced sentences in Virginia.
This time will be different.
Today marks five years since the massacre of 49 people at the Pulse nightclub. I can think of no more important way to honor the people who died and those who survived alike than making sure we have justice in this case.
-Danica
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