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Law banning 'gay panic' defense tested as former Tech football player goes to trial in slaying

Del. Danica Roem (D-Prince William) speaks in 2019.
Del. Danica Roem (D-Prince William), shown here speaking in 2019, sponsored the “gay panic” defense ban that the Virginia legislature passed in 2021. (VPM News file)

A 19-year-old former Virginia Tech football player has pleaded not guilty to second-degree murder charges in the death of 40-year-old Jerry Paul Smith.

Attorneys said Isimemen Etute matched with Smith on Tinder, which led to a sexual encounter in April 2021. Etute told prosecutors that after learning Smith was not anatomically female, he beat them. Etute, who was 18 at the time, was later arrested and suspended from the Tech football team. 

Smith used the name Angie Renee when meeting up with Etute, according to reporting from The Roanoke Times. But without a declaration from the deceased regarding their pronouns, preferred name or gender identity, VPM News will refer to the victim as Smith.

Etute pleaded not guilty to the murder during his arraignment last week in Christiansburg. His attorney claimed Etute acted in self-defense, saying Smith had a knife nearby at the time of the altercation. The defense pointed out that Smith had a pattern of deceiving men in an effort to meet for sex. 

The defense filed a motion to allow some witnesses to remain anonymous because they had similar encounters with Smith. Judge Mike Fleenor denied the request on Monday.   

The defense also asked asked Fleenor to disregard a Virginia law that bars the use of a person’s perceived gender or sexual orientation as a criminal defense in the trial. The so-called “gay panic” defense is used when a perpetrator claims to have lost control after learning of someone’s gender identify or sexual orientation. 

The Virginia legislature passed the “gay panic” defense ban during last year’s general assembly session. It went into effect July 1. The defense also claimed the law should not be applied in Etute’s case because the murder occurred after the bill had been signed, but before it took effect. 

Del. Danica Roem (D-Prince William), who sponsored the “gay panic” bill, said that the argument will backfire for the defense.

“If you’re in the prosecutor's office,” Roem told VPM News, “and you’re on the prosecutor’s team and you look at that motion, you would say, ‘Hey wait a minute. Aren’t you now saying it was in fact the person’s gender identity or sexual orientation that drove you to commit second-degree murder in the first place?’”

Roem said the motion likely won’t withstand scrutiny. 

“Everyone is entitled to a strong, vigorous defense in their trials,” she said. “That's obviously the predicate of the American criminal justice system. At the same time, something like this has to be dismissed. It's so wildly invalid.”

Lawyers in Virginia have used the “gay panic” defense at least eight times since 1986, according to a study by W. Carsten Andresen, an assistant professor of criminal justice at St. Edward's University. Andresen found judges and juries reduced charges in 32.7% of cases when the defense is used. 

Jury selection begins Wednesday morning in the two-day trial.