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Lawmakers Ban Gay Panic Defense In Virginia

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A bill that will outlaw the notorious “gay panic” and “trans panic” defenses is headed to Governor Northam’s desk for his signature.

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.

Del. Danica Roem. Photo via CNS

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.

Written by Cierra Parks, Capital News Service. Top Photo: A rainbow flag was raised on Sept. 23, 2019, along with a trans flag and the Philly Pride Flag for Richmond Pride. (Photos from City of Richmond Flickr account)

Amended Bill to Limit Solitary Confinement Heads to Senate Floor

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David Smith remembers dancing to music in his head and having conversations with television shows during 16 months in solitary confinement at Norfolk City Jail. 

“Your mind plays tricks on you,” Smith said. “There was a slow disconnect with reality. I didn’t recognize the pain that was happening in me, nor did I have the emotional strength to fight back, institutionally.”

Smith is no longer an inmate, but his goal is to end the torture that he said Virginia inmates have endured while sitting in solitary confinement. Smith served a three-year sentence after pleading guilty to 10 counts of possession of child poronography in 2013. Now Smith works with the Virginia Coalition on Solitary Confinement to lead the charge for legislative change.

Sen. Joseph D. Morrissey, D-Richmond, introduced Senate Bill 1301, to prohibit solitary confinement in adult and juvenile correctional facilities. The Senate Appropriations and Finance Committee voted 12-4 Wednesday to advance the bill with amendments.

The amended bill would allow inmates to be held in solitary confinement for 48 consecutive hours, but that can be extended to allow for an investigation to be completed. Isolated, or solitary, confinement is defined in the bill as being confined in a cell alone or with another inmate for more than 20 hours a day for an adult and 17 hours a day for a juvenile.

The Virginia Department of Corrections would still be allowed to use solitary confinement in three circumstances: if an inmate is a threat to themself or others, during a facility-wide lockdown, or for an inmate’s own protection. 

The bill originally proposed that inmates receive medical evaluations within 8 hours of being placed in solitary confinement. The department would need to hire additional registered nurses, physicians, psychologists, psychiatrists, and cognitive counselors to complete the evaluations. 

Without amendments, Morrissey said the fiscal impact report determined the bill would have cost at least $23 million to implement. After consulting with Corrections, Morrissey also eliminated the original requirement that some inmates be offered at least three hours of activities intended to promote personal development. 

There’s nothing currently preventing Corrections from placing inmates in isolated confinement for long periods of time, according to Morrissey.

“Studies show that solitary confinement begins to have debilitating mental and physical effects in as few as 10 days being isolated, and exacerbated for those individuals already suffering from a mental illness,” Morrissey said during the committee meeting. 

Sen. Joseph Morrissey. File photo via VCU-CNS.

The General Assembly passed a bill in 2019 that required the department to release statistics of who is in restrictive housing, the department’s name for solitary confinement. 

Vishal Agraharkar, a senior staff attorney for the American Civil Liberties Union of Virginia, said thousands of Virginia inmates have been affected by solitary confinement over the last couple of years. 

“In the last couple of years, around 7,000 and 6,500 people have cycled around some form of restrictive housing department wide, which showed a real need for the bill,” Agraharkar said.

Jerry Fitz, corrections operations administrator and legislative liaison for the Virginia Department of Corrections, said during a bill committee hearing that the number of Virginia inmates in solitary confinement decreased by 60 percent from January 2016 to June 2020. 

“That’s roughly 908 individuals less than when the study started in 2016,” Fitz said. 

Agraharkar represented Nicolas Reyes, an inmate who spent more than 12 years in solitary confinement at Red Onion State Prison in Southwest Virginia. The ACLU filed a federal lawsuit on behalf of Reyes that ended in a settlement in January. As a part of the settlement, the department agreed to create a language access policy to ensure those with limited English skills are provided access to facilities, programs and services. 

“In the long run, if you make sure that people are being kept in solitary for as little time as possible and you work toward eliminating it altogether, you’re going to see savings in terms of mental health costs,” Agraharkar said. “Public safety will be helped as well, by making sure we’re not putting people in conditions that are extremely harmful long term to their mental health.”

Agraharkar added that in the first half of 2020 the Virginia Department of Corrections spent over $1 million on just two lawsuits related to solitary confinement that the ACLU of Virginia obtained via a Freedom of Information Act request. He also said it costs two to three times more to construct a prison that’s designed to hold people in solitary confinement than one designed for a general population.

“Solitary confinement has significant cost in addition to all the harm that it does to people that are essentially tortured on the inside,” Agraharkar said.

The bill isn’t the first attempt at banning solitary confinement in the commonwealth. Del. Patrick Hope, D-Arlington, introduced House Bill 795 in 2018, but it was left in a subcommittee. The committee didn’t pass the bill in 2018 because they didn’t think it could be funded after looking at the fiscal impact statement, Agraharkar said.

Morrissey said he thought the bills would make less work for the department and not more.

“Intuitively it would strike me that if we’re eliminating solitary confinement, then we’re eliminating the necessity for DOC corrections officers to monitor the doings of somebody in solitary confinement,” Morrissey said. “I think it would be less work, but that’s just an intuitive analysis.”

Smith said his lawyers told him solitary confinement would be the best alternative for his safety. Then he quickly realized how detrimental it was to his mental and physical health. Smith said he’s read letters from inmates serving time in solitary confinement and they inspire him to push for change.

“I didn’t fight on the inside, so I’m sure as hell going to fight now,” Smith said. “We can’t let them be silent, we’ve got to amplify those voices to show what’s going on.”

The bill heads to the Senate. If passed, the bill would take effect in July 2022.

Written by Noah Fleischman, Capital News Service. Top Photo: Virginia Capitol. VCU CNS photo by Conor Lobb.

Virginia Senate Committee Rejects Hate Crime Expansion Bill

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Sen. Ghazala Hashmi’s bill to expand hate crimes to include crimes based on perception — which would have had the effect of protecting gender expression, not covered under current hate crime statutes — failed in the Virginia state Senate after backlash from both parties.

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.

Sen. Ghazala Hashmi. Taken from her campaign’s website.

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, because 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. 

Sen. Joe Morrissey questioned several aspects of the bill and said that he found the bill “offensive in so many different ways.” Photo via VCU-CNS

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.

Written by Cierra Parks, Capital News Service. Top Photo: June march for Black Lives Matter on Monument Avenue. Photo by Ada Romano.

Morrissey Has “No Scores To Settle” In Senate, Lays Out Policy

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Joe Morrissey’s two-fisted reputation precedes him, but behind the fisticuffs, his policy positions are the sort that should please his fellow Democrats.

When Joe Morrissey staged a primary challenge against Sen. Rosalyn Dance, he also faced off against the state’s top Democratic leadership — Gov. Ralph Northam, U.S. Sen. Tim Kaine and former Gov. Terry McAuliffe — who supported the incumbent.

Morrissey has been disbarred twice, convicted for contributing to the delinquency of a minor, and canonized in Virginia history for punching a defense lawyer in 1991 while he served as Richmond’s commonwealth attorney. The last time he served in the General Assembly, he spent his nights in jail and his days representing constituents. 

Yet, Morrissey swept the primary with 56% of the votes after running a campaign that put him directly in front of voters; going door-to-door converted into a surprising win. Now he seems surely bound for Capitol Square representing the 16th Senate District, which includes Petersburg and Hopewell, part of Richmond and parts of Chesterfield, Prince George and Dinwiddie counties. 

The party largely snubbed Morrissey during the competitive primary, but now Democrats are sidling back with an eye to the January 2020 legislative session, and concern over who Morrissey may caucus with. 

In the past few weeks, Morrissey confirmed he had coffee with Northam’s chief of staff, Clark Mercer, and beer with McAuliffe. Democrats aren’t the only ones courting Morrissey, who received phone calls from Republicans after his primary win. 

“Fighting Joe” Morrissey indicates that the fights he’s most interested in now are the ones for his constituents.

“I’m not going to the Senate to settle old scores. I’m not going there with any type of ‘I told you so,’” Morrissey said when asked about his future political relationships.

Morrissey touts a legislative agenda that would make Democrats beam, citing environment and criminal justice reform as his biggest priorities. 

An analysis of his 2008-2015 legislative record shows Morrissey voted mostly with his party, according to the Richmond Sunlight database records. He championed legislation dealing with gun control, environmental policy and criminal justice reform, including a proposed constitutional amendment that would have restored civil rights to individuals convicted of felonies.

The linchpin of his current environmental focus is excavating and recycling coal ash rather than capping coal ash ponds

“There’s a coal ash pond 100 feet from the James River. Don’t think that it won’t seep into the river,” Morrissey said. “That’s why I’m against simply capping — putting a cover — over toxic coal ash and saying that everything is going to be okay — it’s not going to be okay.”

Morrissey also has ambitious plans for criminal justice reform, pointing to the steep cost of incarceration versus drug court.

“I favor doubling the number of drug courts in Virginia,” Morrissey said. “The recidivism rate for people that go through a drug court is 6.1% while the recidivism rate for people that go through the Department of Corrections is 61%.” 

Morrissey wants to bring parole back for felons, which was abolished in 1995. He compared parole to auto insurance demerit points that are used to incentivize safer driving.

“I want to incentivize people to behave in prison, to take advantage of programs, and to not commit other crimes in prison or abuse drugs. How do you incentivize them? Reinstate parole,” Morrissey said. 

Other criminal justice reform goals include automatic restoration of rights for felons leaving prison, establishing a mental health court and permanently ensuring that drivers can’t have their license suspended or revoked over unpaid court costs or fines. 

Of the $66,000 in contributions Morrissey’s campaign has received as of the most recent filing report, the bulk is from his own coffers: $25,000 from his own checkbook and another $25,000 from the law practice he established, Morrissey & Goldman LLC. The third top donor is Verona-based Nexus Services, which helps immigrants post bond and provides them with GPS monitoring devices while they wait for immigration cases to be heard. 

“I’m going in there kind of like a free agent, with no debts that I have to pay back,” Morrissey said. Democrats eager to flip the Senate may rest easier when they hear his policy positions, but Morrissey is careful to note that constituents are his primary concern. 

“I can go in there and vote for the legislation that’s best for Virginia and best for the citizens of the 16th District,” he said. “Then what’s best for the party, and then what’s best for Joe Morrissey — in that order.”

Written by Jimmy O’Keefe, Capital News Service. Top Photo via Joe Morrissey/Facebook

Fighting Joe Is Back On The Ballot

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Tomorrow’s Democratic primary, pitting incumbent Rosalyn Dance against notorious Richmond political figure Joe Morrissey, will likely decide the 16th District’s next State Senator.

In the past decade, Joe Morrissey has brandished an AK-47 on the floor of the House of Delegates, spent three months in jail after being convicted of sex crimes, and placed third in Richmond’s 2016 mayoral election. Now he may be heading to Virginia’s Senate.

Voters in Virginia’s 16th Senate District will go to the polls on Tuesday, June 11. With no Republicans filed to run in the district, the Democratic primary between Morrissey and incumbent Rosalyn Dance will likely decide who will be representing the district for the next four years.

Senate District 16, comprised of parts of Petersburg, Hopewell, and Richmond’s East End, as well as parts of Chesterfield, Dinwiddie, and Prince George Counties, has been represented by Dance since 2014.

Currently seeking her third term as state senator for the district, Dance has a long history in public service. She served as mayor of Petersburg from 1992 through 2004. The following year, she was elected to represent the 63rd district in Virginia’s House of Delegates, an office she held through 2014 when she won a special election to replace Henry Marsh, who retired that same year.

Dance speaks at Replenish Richmond’s I Have A Dream Festival on June 1 (via Senator Rosalyn R. Dance/Facebook)

Dance is perhaps best known in Virginia for a bill introduced in 2019 to raise the state’s minimum wage to $15 per hour by 2021. Dance has been introducing similar legislation over the last three legislative sessions, but never to any success; the most recent bill was defeated along party lines 21-19 in January.

Though the legislation didn’t pass, Dance has been able to tout the attempt during her re-election campaign.

“I have always strived to make a difference, to put my constituents first, to improve their lives and to govern with our values and principles,” Dance said in a press release at the launch of her re-election campaign.

Securing the funding for the construction of a hospital in Dinwiddie County and co-sponsoring a bipartisan bill to clean up coal ash ponds in Chesterfield County have also been achievements Dance is emphasizing as the primary election nears. A member of the Senate Finance Committee, Dance has built up status during her time in Virginia’s capital that makes her attractive to voters.

Dance with Governor Northam at a May 2 campaign stop. (via Senator Rosalyn R. Dance/Facebook)

While she is a member of the Virginia Legislative Black Caucus, which repeatedly called for the governor to resign during his blackface scandal in February, Northam’s The Way Ahead PAC has donated $10,000 to Dance’s re-election campaign. Northam and Dance have publicly accompanied one another several times in the past few months, including an appearance at a luncheon for the United Negro College Fund. Other prominent Virginian Democratic figures, including Senator Tim Kaine and Richmond Mayor Levar Stoney, have lent their support to Dance.

Despite some big names backing Dance, Joe Morrissey is staging a competitive run against the incumbent.

Morrissey has a long and storied history in Virginia politics. In addition to running for state Senate and hosting his Fighting Joe Morrissey morning radio show on WJFN, he is also currently appealing his second disbarment. His first disbarment came in 2003 on account of “frequent episodes of unethical, contumacious, or otherwise inappropriate conduct,” according to the 4th U.S. Circuit Court of Appeals. He was reinstated to the bar in 2011.

Morrissey was disbarred a second time in 2018. The disbarment followed a highly publicized scandal in which Morrissey was jailed for three months after being convicted of contributing to the delinquency of a minor in 2014.

Morrissey with wife Myrna on his wedding day in 2016. (via Joe Morrissey For Senate/Facebook)

The conviction came after it was discovered Morrissey was having sex with a 17-year-old receptionist employed at his Henrico law office. A member of the House of Delegates at the time, Morrissey was pressured by members of his own party to resign. Today, Morrissey and his former receptionist are married with three children.

Though clearly controversial, Morrissey has a reputation in the district of being able to get things done. He enjoys strong support from working class African-Americans who see him as someone that can improve material conditions in the district.

“I think I can make Senate District 16 better,” he is quoted by the Village News as saying at an event in Richmond last month.

As his campaign kicked off, Morrissey vowed to push for the decriminalization of marijuana, increased funding for infrastructure, and more representation for Petersburg, a city the Richmond Times-Dispatch quotes the candidate as saying is in need of more advocacy.

Like Dance, Morrissey has also come out in favor of a higher minimum wage.

Morrissey meets with voters on the campaign trail in Hopewell. (via Joe Morrissey for Senate/Facebook)

The final week of the race has been characterized by controversy regarding the Morrissey campaign’s finance reports. Dance criticized Morrissey’s claim that his campaign only had two expenditures to report. “Everyone knows campaigns are filled with expenditures, large and small,” the Progress-Index quotes Dance as saying.

The Morrissey campaign responded to the attack, saying that a processing error made by campaign manager Whitney Spears is to blame.

The finance report incident is the latest in a series of controversies that has been rattling the Virginia Democratic Party in 2019. Governor Northam’s blackface scandal was the catalyst for the unveiling of sexual assault allegations directed at Lieutenant Governor Justin Fairfax, as well as Attorney General Mark Herring’s admission of having worn blackface in the 1980s. Some in the party fear that a figure like Morrissey in the Senate could create problems for Virginia Democrats who are looking to win back the full trust and support of voters.

The primary is being held on Tuesday, June 11 from 6 a.m. to 7 p.m. All registered voters regardless of party are eligible to vote in Virginia’s primaries. To find out if you live in the 16th State Senate District and are eligible to vote in this primary, enter your address into the “Who’s My Legislator?” database at whosmy.virginiageneralassembly.gov.

Top Photos via Facebook (Joe Morrissey For Senate/Senator Rosalyn R. Dance)