Categorical Legislative Prohibitions on Defenses in Criminal Cases

NACDL continues to actively oppose legislative efforts in Virginia to categorically prohibit certain defenses in criminal cases.

It is NACDL’s position that categorical legislative prohibitions of defenses in criminal cases chip away at the foundational principles of our criminal justice system and undermine well-established rules of evidence that serve to balance principles of relevance and due process rights of accused persons. Legislation that focuses on limiting certain defenses and the consequential media attention that follows encourages the public to believe that trials are conducted by judges mechanically applying the law instead of through an adversarial process culminating in a fair jury verdict that is based on a thorough and searching consideration of all of the relevant evidence at trial.  

On February 16, 2019, after significant study by NACDL's Task Force on Defenses, NACDL's Board of Directors adopted a resolution "Concerning Categorical Legislative Prohibitions of Defenses in Criminal Cases."

On February 3, 2021, NACDL Past President Nina Ginsberg submitted written testimony to the Virginia House Courts of Justice Committee regarding HB 2132, legislation to establish that "the discovery of, perception of, or belief about another person's actual or perceived sex, gender, gender identity, or sexual orientation, whether or not accurate, is not 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 malice as an element of murder." HB 2132 was signed into law by Governer Ralph Northam on March 31, 2021. 

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