A California politician has introduced legislation (AB 2501) to stop homophobes from claiming a Gay Panic defense in cases where they are charged with murder. Specifically, the legislation provides that for purposes of determining sudden quarrel or heat of passion, the provocation was not objectively reasonable if it resulted from the delivery or, knowledge about, or potential disclosure of the victim’s or defendants’ actual or perceived “gender, gender identity, gender expression, or sexual orientation,” including circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant.
There are dozens and dozens of instances where Men have murdered Transwomen upon “discovering” that their transwoman lover was biologically male. This impulse – to kill, to destroy – is the result of male socialization, and it’s Men who are doing it. This impulse is abhorrent and wrong, and rooted in misogyny.
Gender Identity Watch abhors violence against Transwomen (and Transmen).
Now, what is wrong with the California legislation to eliminate the Gay Panic defense?
Nonforcible is not defined in California law.
Why does this matter to Women?
A few things…
On February 20, 2009, 18-year-old “Jane Doe” went to a party with her boyfriend, Victor. After Victor left the party, Jane fell asleep and woke up to the sensation of “having sex.” She was in a different position on the bed, perpendicular to the position she had been in when she fell asleep. She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., Julio Morales, she realized it was not Victor and tried to push him away. Morales grabbed her thighs and pushed his penis back into her vagina.
Morales was acquitted of rape because rape by impersonation was illegal in California only where the rapist impersonates a woman’s husband in order to get her consent. Apparently, what he did was nonforcible rape. To close the loophole in California’s rape-by-fraud law, legislation quickly passed both houses of the California State legislature without one dissenting vote, and were signed into law by Governor Jerry Brown on September 9, 2013.
The legislation to fix the result in the Morales decision is a good result – rape by deception or impersonation is rape.
No meaningful consent can be obtained based on a lie.
So back to the California law to ban the Gay or Trans Panic defense.
How would this work in the case of a Woman who was “tricked” into having sex with a Transwoman?
California does not define “nonforcible.” It does, however, define “duress” in the context of rape.
“Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
So, if a Transwoman attempted to “have sex” with a Woman using “duress,” such Woman would be (legally) permitted to kill him.
That’s a good result.
Now, what if said Transwoman attempted to “have sex” with a Woman by pretending to be actually female? This, of course, matters to Lesbians.
Currently, California only discusses the concept of “nonforcible” in the context of sex crimes against minors. California law recognizes that rape “under duress” is different than “nonforcible rape. Nonforcible rape, according to California, includes unlawful sexual intercourse with a minor (Cal. Pen. Code § 261.5), Lewd or lascivious acts involving children (Cal. Pen. Code § 288) and oral copulation with minors (Cal. Pen. Code § 288a).
To determine “sudden quarrel or heat of passion,” a provocation to kill is not objectively reasonable if it resulted from the delivery or, knowledge about, or potential disclosure of a victim’s actual or perceived “gender, gender identity, gender expression, or sexual orientation,” including circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant.
Does this happen? Do Transwomen in the real world make unwanted nonforcible sexual advances towards women?
I don’t know.
Do Transwomen talk about making nonforcible sexual advances towards Women?
YES. YES, THEY DO!
I have seen this! (Cotton Ceiling)!!
Do Women have every right to react with violent force in this instance?
The shifting of the burden – the elimination of the “Gay Panic” defense” will benefit Gay Men – it does not help Lesbians who are subjected to predatory behavior from heterosexual men who now think they are Lesbians.
Would you kill this guy? Do you think it reasonable for another Lesbian to kill this guy? Do you want a law that says it is not objectively reasonable for Women to react with force if some Man is trying to convince her that his penis is a lady stick in a “nonforcible” way?
This is probably a remote concern because Women tend to be the victims in these types of crimes, not the aggressors. But if a harm is foreseeable, legislators should consider it.
What are the unintended consequences of this law?