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The Failed Logic Of "Trans Panic" Criminal Defenses

U.S. Marine Joseph Scott Pemberton, charged with the murder of transgender Filipina Jennifer Laude, testified Monday that he strangled Laude out of repulsion — a new iteration of the “trans panic” defense, which blames trans women for their own murders.

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The ongoing case against U.S. Marine Joseph Scott Pemberton for the murder of transgender Filipina Jennifer Laude reached a critical point on Monday in Olongapo City, Philippines: Pemberton admitted to choking Laude into unconsciousness after discovering she was a trans woman.

But the Marine, speaking through his lawyers, didn't quite put it that way.

According to his defense team, including lead attorney Rowena Garcia-Flores, Pemberton, 20, choked 26-year-old Laude because she “had a penis" and was actually “a man,” reports the New York Times.

“I felt like I was raped by Laude,” Pemberton testified. Garcia-Flores contextualized that his client "was repulsed [and] felt violated and angry."

The substance of Pemberton’s defense for choking Laude and then leaving her to die is another manifestation of the so-called “gay panic” or “trans panic” defense, which has been tried a number of times in the U.S., most notably in the deaths of gay Wyoming student Matthew Shepard in 1998 and California transgender teen Gwen Araujo in 2002.

While the panic defense was thrown out in Shepard’s case, it partly succeeded for Araujo’s four murderers, who were only convicted of second-degree murder and voluntary manslaughter even though they beat her for hours before she died. This is a likely reason why Pemberton is using the defense now, as his lawyers are trying to reduce the charges against him from murder to homicide.

The main premise of trans panic is that a heterosexual man is so overwhelmed after realizing someone he had a sexual relationship with is trans that in a state of something like temporary insanity he ends up killing the person. It’s a defense that has been explicitly banned in California, in part because of Araujo’s case, and the American Bar Association is formally urging other states to adopt similar statutes. But the fact that it’s being used in Pemberton’s case speaks to the unfortunate legacy of its logic, and the continued necessity to refute it.

Another member of Pemberton’s defense team, attorney Jay Tolosa, elaborated on Pemberton’s rape claim in a Philippine TV news report from ABS-CBN: “He was so repulsed and so disgusted because he did not give his consent to allow a man to do that to him,” referring to the oral sex that Laude supposedly performed.

Another, unidentified member of Pemberton’s team added: “Pemberton only acted in defense of his life and honor.”

The Marine claimed he punched Laude, then put her in a chokehold to subdue her after she slapped him, and left her in a motel bathroom because he was afraid of being ganged up on by her companions.

I met three out of the four trans women who were with Laude that night when I wrote about the case for Vice — none of them could weigh much more than 120 pounds, while Pemberton is a skilled boxer who is trained in military maneuvers, such as the chokehold that even he testified left Laude unconscious.

By seriously comparing the discovery that a sex partner is trans to being raped, Pemberton’s defense team equates the violation Pemberton felt with someone forcing him to have sex against his will. If one were to follow this logic, it would mean that any time someone does not disclose a fact about themselves that would otherwise disqualify them from being another’s sexual partner, then the violation would be akin to rape.

Such logic not only denies trans women’s fundamental identities and attempts to define us as men hiding in women’s clothing, but also denies that the reason heterosexual men become attracted to us in the first place is because we are women — when men like Pemberton find out we’re trans, their attraction runs counter to their erroneous sense of gender essentialism that defines gender purely through a person’s genitals. In this way, trans panic is intimately intertwined with a misconstrued sense of gay panic: Pemberton assumed that he had been having homosexual sex against his will, even though Laude was not a man.

Let’s pretend, for a moment, that this is a type of mental illness — I’ll call it Gender Essentialism Disorder (GED) — that would be diagnosable if a person is unable to reconcile the discrepancy between his visceral perception of trans women as women and the faulty belief that a person’s gender is defined by their genitals. If Pemberton suffers from it, perhaps the solution is not to jail the Marine but to rehabilitate him.

Perhaps Pemberton should be confined to a mental health facility until such time that he fully understands that gender is not merely defined by genitals. Perhaps GED would mean conditioning him to react with polite refusal rather than violent rage when he realizes that he is no longer attracted to a person he is having sex with and wants to stop. Perhaps every single person who finds themselves in danger of succumbing to the temporary insanity caused by GED, especially military men who are deployed abroad, must undergo rigorous training so that there will be no risk of them becoming homicidal when they find themselves in the situation Pemberton was in.

Were we to follow this kind of legal approach, then it wouldn’t be trans women’s responsibility not to get killed because we’re trans, but cisgender men’s responsibility not to fly into murderous rages at the discovery of women’s trans status.

So far, neither the American military nor government has commented on the latest development in the Pemberton case, even though WikiLeaks-obtained cables in a U.S. Marine rape case from 2005 show that the American government has been eager to exert influence on these types of cases in the past and has not hesitated to comment on other aspects of the Pemberton case, such as its insistence that Pemberton be placed under American guard even though he committed a crime on Philippine soil against a Filipino citizen.

The government’s silence is a tacit acknowledgment that the U.S. is willing to condone a strategy frowned upon by law professionals in its own country, as well as deeply discriminatory to many of its citizens, just to protect a U.S. military officer who has now admitted to choking a woman to unconsciousness and leaving her to die because she had the misfortune of being transgender.

It makes me wonder how the 18 known cases of transgender women killed in the United States this year, the vast majority of whom were women of color like Jennifer Laude, will ultimately be decided.

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