Cierra Parks

Lawmakers ban gay panic defense in Virginia

By Cierra Parks, Capital News Service

RICHMOND, Va. -- Virginia lawmakers passed a bill that will ban the use of a person’s perceived or actual sexual orientation or gender identity as a defense in court for the assault or murder of an LGBTQ person. 

“It’s done: We’re banning the gay/trans panic defense in Virginia,” Del. Danica Roem, D-Manassas, said in a Twitter post

Roem introduced House Bill 2132, which passed the Senate 23-15 on Thursday with an amendment. The House approved the amendment in a 58-39 vote. The bill now heads to Gov. Ralph Northam’s desk for a signature.

The Senate amendment adds oral solicitation, or hitting on someone, as an unacceptable justification for the gay or transgender panic defense. 

The panic defense has historically been used in cases where a member of the LGBTQ community was attacked because of their actual or perceived sexual orientation or gender identity. Defendants use the panic defense to justify “heat of passion” murders or assaults. 

“This [bill] means someone’s mere existence as an LGBTQ person does not excuse someone else and does not constitute a reasonable provocation to commit such a heat of passion attack,” Roem said.

The statute does not dismiss traditional self-defense lawsuits. This means LGBTQ people can still be prosecuted for attacking someone.

There have been at least eight instances in Virginia where the panic defense was used, with the last case in 2011, according to Carsten Andresen, a researcher and criminal justice professor from Austin, Texas. He said he has tracked 200 homicide cases nationally where the panic defense was attempted. Andresen reached out to Roem in support of the bill. 

His research included five murders and three assaults in Virginia between 1973 and 2011 that Andresen said used the panic defense to justify or excuse a defendant’s violent actions. Mark Hayes murdered Tracie Gainer, a transgender woman, in 2002. Hayes claimed he “lost it” and murdered Gainer after engaging in sexual intercourse. In 2011, Deandre Moore, age 18, pleaded guilty to killing 20-year-old Jacques Cowell by stabbing him multiple times. Cowell was openly gay and there were witness accounts that the two had a physical relationship. Moore received a 40-year prison sentence, with 15 years suspended.

“In these cases, criminal defense attorneys used gay and trans panic defense to put the victim (rather than the offender) on trial,” Andresen wrote in support of the bill. He said use of the panic defense “suggests that it is permissible to commit violence” against LGBTQ people.

Sen. Joseph Morrissey, D-Richmond, spoke in opposition of the bill, saying lawmakers should not pass laws that prohibit defendants from making a defense and that lawmakers would be going “down a very slippery slope.” Morrissey said any defendant who would offer the panic defense “would of course be rejected.”

Sen. Jennifer McClellan, D-Richmond, said this is not the first time Virginia has expressly prohibited a defense. Legislators repealed in 2008 the code section that provided defense from carnal knowledge when a defendant marries a child 14 years or older.

“When we have found an affirmative defense to be abhorrent to public policy we have gotten rid of it,” McClellan said. 

McClellan said she wished she could agree with Morrissey that no judge would accept the panic defense, but referred back to the Virginia cases where it was used successfully.

“We know the bill is constitutional, we know also, the bill has existing precedence, which is why it has earned overwhelming bipartisan support in state houses across the country,” Roem said.

The American Bar Association in 2013 recommended that local, state and federal legislatures curtail the availabilty and effectiveness of the gay and transgender panic defense. Roem said that similar bills have been implemented in other state legislatures. Virginia will become the 12th state to ban the panic defense, according to the policy organization Movement Advancement Project. The defense is also banned in the District of Columbia.

There are currently 39 states that allow the panic defense to be used in cases where hate crimes resulted in the assault or murder of an LGBTQ individual. This typically results in a murder charge being lessened to a charge of manslaughter or acquittal.

Roem said she worked with Wes Bizzell, president of the National LGBT Bar Association, to prepare the bill. She also thanked Judy Shepard, the mother of Matthew Shepard, for speaking in support of the bill in committee.

Matthew Shepard, a gay man, was murdered in 1998 in Laramie, Wyoming. The judge barred Aaron McKinney’s defense lawyer from using the gay panic defense in the murder trial. McKinney said Shepard’s advances triggered memories of sexual abuse he suffered as a child. Police said the crime was motivated by robbery, but Shepard’s sexual orientation likely made him the target. There were four people involved in the brutal crime. Two were found guilty of murder and two were charged with being an accessory after the fact to first-degree murder.

Roem was in high school when Matthew Shepard was murdered. She said the case had a profound effect on her and prevented her from coming out due to a fear of being ostracized and attacked. 

“It was requested to me by one of my Manassas Park student constituents who’s out, hoping not to have to live in the same fear in 2021 that I did in 1998,” Roem said of the bill.

Roem said there are people who don’t believe hate crimes such as the one against Shepard happen today in Virginia. She affirmed that they do happen, and she believes it is time to do something about it.

“We have to look at this from the perspective of ‘what do we do to make an affirmative statement that LGBTQ lives matter, and that you can’t just kill us for existing,” Roem said.

Capital News Service is a program of Virginia Commonwealth University's Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

Virginia General Assembly advances bill to modernize HIV laws

By Cierra Parks, Capital News Service

RICHMOND, Va. -- The General Assembly advanced a bill this week that lawmakers say will modernize Virginia’s current HIV laws. The amended measure has passed both chambers, but lawmakers must now accept or work out differences in the bill. 

Senate Bill 1138, introduced by Sens. Mamie Locke, D-Hampton, and Jennifer McClellan, D-Richmond, also removes a law that prohibits the donation of blood and organs by people with HIV and other sexually transmitted diseases. A 21-17 vote along party lines pushed the bill out of the Senate earlier this month. The House of Delegates passed the bill Friday in a 56-44 vote. 

The bill repeals a law that makes it a felony for HIV-positive people to sell or donate blood, body fluids, organs and tissues. Donors must be in compliance with the HIV Organ Policy Equity Act. This state legislation does not apply to national organizations such as the American Red Cross. The organization implements FDA guidelines that require men who have sex with men to defer from sexual intercourse for three months before donating blood. 

The measure also removes HIV, AIDS, syphilis and hepatitis B from the list of infectious biological substances under the current infected sexual battery law, opting to use the language “sexually transmitted infection.” The crime is punishable by a Class 6 felony, which carries a punishment of no more than five years in prison or a $2,500 fine. In 2019 and 2020, three offenders were convicted of such crimes, according to data provided in the impact statement by the Virginia Criminal Sentencing Commission. The Senate voted to lower the penalty from a Class 6 felony to a Class 1 misdemeanor. 

Opponents of the bill spoke against reducing the penalty for such crimes. The House vote Friday included an amendment to keep the Class 6 felony punishment.

The bill adds language that HIV will not be included in the current statute as an infectious biological substance. It is a Class 5 felony to cause malicious injury by means of an infectious biological substance. The offense is punishable by five to 30 years in prison. 

McClellan said current HIV laws put in place during the 1980s AIDS epidemic have proven ineffective from a public health perspective. She said they are counterproductive and were implemented years ago tof receive federal funding.

“There are other laws that could be used to criminalize intentionally infecting someone with anything,” McClellan said. “There’s no need to specifically target and single out for HIV-positive status.”

LGBTQ and HIV advocacy groups hope the bill will end the stigma attached to HIV-positive people and also LGBTQ members who are not HIV positive.

The bill has the support of organizations such as the Center for HIV Law and Policy, Equality Virginia, the Zero Project, Ending Criminalization of HIV and Overincarceration in Virginia, or ECHO VA, and the Positive Women’s Network - USA. 

Deirdre Johnson, co-founder of the ECHO VA Coalition, said the bill is a step in the right direction for ending the stigma against those with HIV. 

“One of the biggest things with the stigma has been the fear of knowing that you could be criminalized for having HIV, period, and then you know, of course, that deters people from getting tested,” Johnson said.

Johnson said that HIV stigma and criminalization have a profound effect on people of color and other marginalized communities who already experience health care inequity and mistrust. 

“Virginia is for lovers and I really want us to encompass that slogan, including people living with HIV and a perceived risk for HIV,” Johnson said

Cedric Pulliam, co-founder of ECHO VA, said lawmakers in the 1980s and 1990s saw HIV as something the public needed to be protected from when it was and continues to be a public health concern. There is now a call for state legislators around the country to change HIV criminalization laws.

Pulliam said that national agencies are reaching out to state legislators to help undo prior initiatives that limit HIV prevention, treatment and services. 

“We need your help from the state to really, basically right this wrong that we created decades ago,” Pulliam said of the agency outreach.

Pulliam called the move to decriminalize health status a “liberation” for those living with HIV because they would no longer have a target on their back. He also said that laws specifically target people with HIV. In Virginia, syphilis and hepatitis also are criminalized but other chronic illnesses and diseases are not, he said.

Virginia is currently one of 37 states as of 2020 that have HIV discriminatory laws, according to the Centers for Disease Control and Prevention.

“If the federal government has really been calling for states to make this change, it's time for Virginia to be one of the next and not be, you know, the last,” Pulliam said.

 

Capital News Service is a program of Virginia Commonwealth University's Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

Virginia Senate committee rejects hate crime expansion bill

 

By Cierra Parks, Capital News Service

RICHMOND, Va. -- Legislators attempted to pass a bill that would expand the definition of a hate crime to include crimes against people based on perception, but opponents said the bill was too broad and could be misused. 

The Senate Judiciary Committee passed the bill by for the year late last month. Four Democrats strayed from party lines to vote against the bill after much debate.

The current statute defines hate crime victims as those who are maliciously targeted based on race, religion, gender, disability, gender identity, sexual orientation or ethnicity. Legislators passed the legislation last year during the General Assembly session.

Senate Bill 1203, proposed by Sen. Ghazala Hashmi, D-Richmond, aimed to ensure that someone who maliciously attacks a person based on their perception of that person’s membership or association within one of the aforementioned groups is held to the same standard as someone who attacks a person they know is a member of one of the groups. Hashmi’s bill also added color, national origin and gender expression to the list of protected classes.

Hashmi cited an incident during Black Lives Matter protests last summer in which Harry H. Rogers, an avowed high-ranking member of the Ku Klux Klan, drove his truck into a crowd of protesters. Henrico’s Commonwealth Attorney Shannon Taylor said her client, who was hit, was not protected under current hate crime legislation because he is white. She said Rogers drove his truck with the intention to disrupt the protests.

“Our current law looks more at the victim and the victim’s characteristics than it does looking at the offender and his intent,” Taylor said.

Vee Lamneck, the executive director of Equality Virginia, said hate crimes are more than acts of violence. Such crimes are committed with the intention of inciting fear and dehumanizing groups, Lamneck said.

“Individuals with intersecting identities, especially Black, Latinx and Indigenous LGBTQ people are exposed to higher rates of violence,” Lamneck said. “Redefinition of the categories in this bill will help to further ensure that all diverse members of our communities are sufficiently protected by the law from hate crime violence and that perpetrators of such violence are held appropriately responsible.”

Sen. Chap Petersen, D-Fairfax, said during the committee hearing that the bill was a massive expansion of the current statute. Petersen said the proposed changes would be “pretty far off-field from the original purpose.”

Opponents, including the Virginia Association of Criminal Defense Lawyers, said the bill was too broad and could allow for the exploitation of who was a hate crime victim. Legislators pondered over if this meant a person of color could be charged with a hate crime for assaulting a white person and postulated several scenarios of how the bill could be misused.

Emanuel Harris, a representative for the Black Coalition for Change, called the questioning of the protection of white supremacists puzzling, offensive and laughable.

“The history has shown that the black community is the one being intimidated, not the other way around,” Harris said during the public comment portion of the meeting. Harris said the original statute needs to be expanded.

“I am offended that folks brought this and then clouded, or wrapped it up in BLM, and suggested that if we vote against it, somehow we’re not supporting the prosecution of hate crimes, cause that is not what we are doing,” said Sen. Joseph Morrissey, D-Richmond. “This bill is offensive in so many different ways.” 

Morrissey was a co-patron for the hate crime legislation that passed in 2020.

Hashmi said Morrissey was approaching the bill from a position of privilege, at which point Senate Minority Leader Thomas Norment, R-Williamsburg, interrupted with an “Oh my God.” Hashmi continued and said the bill addressed race as well as oppressed and terrorized religious and LGBTQ communities. 

The Anti-Defamation League helped with the bill’s language. Meredith R. Weisel, representing the ADL, said the bill is important because it would help ensure that offenders who are mistaken about the victim’s protected characteristics can still be held accountable for a hate crime under the law.

Brittany Whitley, chief of external affairs and policy with the Office of the Attorney General spoke in support of the bill along with other citizens and attorneys.

Hashmi said in an email that she hopes to refine the language in the bill and will consider reintroducing it next year. 

"Addressing hate crimes is important for the well-being of our communities: hate crimes are designed to harm and inflict pain on not just the targeted individual(s) but also to intimidate and terrorize entire groups of people,” she said.

Capital News Service is a program of Virginia Commonwealth University's Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.

Lawmakers Advance Voting Rights Act of Virginia

By Cierra Parks, Capital News Service

RICHMOND, Va. -- On the first day of Black History Month, legislators advanced a bill to help ensure voter protection for Virginia citizens. 

House Bill 1890, also known as the Voting Rights Act of Virginia, cleared the House in a 55-45 vote. 

Del. Cia Price, D-Newport News, modeled the bill after the Federal Voting Rights Act of 1965. Price’s bill aims to eliminate voter suppression, intimidation and discrimination through changes in voting laws and practices by election officials. 

“Though the original Voting Rights Act was passed on the federal level in 1965, there are still attacks on voting rights today that can result in voter suppression, discrimination and intimidation,” Price said during the bill’s hearing. “We need to be clear that this is not welcome in our great commonwealth.”

 The bill prohibits localities from influencing the results of elections by “diluting or abridging the rights of voters who are from a protected class.” The measure defines the protected class as a group of citizens protected from discrimination based on race, color, or membership in a language minority group. 

The bill also requires voting materials to be made in languages other than English if certain criteria are met. 

“HB 1890 requires that changes to voting laws and regulations be advertised in advance for public comment and evaluated for impact on Black, Indigenous and people of color communities,” Price said while speaking about the bill. 

The bill allows the attorney general to sue if a locality or official violates election laws. Fees or fines that are won in the lawsuit will go to a Voter Education and Outreach Fund established pursuant to the bill’s passage. The fine for a first offense can not exceed $50,000 and fines for a second offense can not exceed $100,000.

Barbara Tabb, president of the Virginia Electoral Board Association, believes that attaching fines to the bill has the potential to scare off election officers.

“This will result in definitely a much harder time in recruiting our election officials,” Tabb said. "That’s my concern about it.”

Price said this bill is important because the attack on the Voting Rights Act has not stopped since 1965. She said the landmark law was “gutted” on the federal level with the Shelby County v. Holder case in 2013.

“What this [HB 1890] will do is restore some of those protections and allow for Virginia to say, ‘We believe in the full Voting Rights Act and we know that it’s needed,’” Price said 

Legislators have passed a number of recent laws to make voting easier, including making Election Day a holiday, allowing early, in-person voting and permitting no-excuse absentee voting. 

Price said she compiled examples of voter suppression ranging from moving polling places off public transit lines, or from a community center to a sheriff’s office.

“Voter suppression doesn't always look like taking a box of ballots and throwing it out,” she said. “It can be implicit, it can be unintentional.”

Price said she worked with several groups to ensure the bill ends discrimination and voter suppression. In addition to community advocates, she consulted with lawyers currently representing impacted voters, the Lawyers’ Committee for Civil Rights Under Law, the Advancement Project and the NAACP Legal Defense and Educational Fund.

Senate Bill 1395, the sister bill in the Senate, was introduced by Sen. Jennifer McClellan, D-Richmond. The bill has been referred to the Senate Finance and Appropriations Committee. 

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