On Trial for Surviving a Hate Crime

Victims of transphobic hate crimes find themselves placed on trial when they attempt to protect themselves.

Late on June 5, 2011, CeCe McDonald, a 23-year-old Black transgender woman, was attacked by a group of white people yelling racist and sexist obscenities. A white woman slashed McDonald’s face with a glass bottle, creating a wound that would require stitches. In the fight that ensued, forty-seven-year-old Dean Schmitz, a white man with a long criminal history, attacked McDonald as she was trying to flee the scene. McDonald stabbed him with a pair of scissors she kept in her purse. Schmitz died from loss of blood, and McDonald was arrested and charged with second-degree murder.

While McDonald maintained that she acted in self-defense, the prosecuting attorney, Michael Freeman, insisted that she had had every opportunity to retreat to safety. Since Minnesota is not an SYG state, Freeman cited each individual’s duty to retreat from danger when attacked outside the home. McDonald’s failure to retreat therefore made her a murderer. Insisting that “the scales of justice have got a blindfold on them for a reason,” Freeman signaled the blindness of the law to human differences such as race and sex.  Thus he could dismiss the racist and transphobic origins of the attack against which McDonald defended herself, insisting that the deadly encounter was no different from an ordinary bar brawl with both sides being equal. In the end, Mc- Donald pled guilty to second-degree manslaughter. She was sentenced to 41 months, and served 19, in an all-male prison.

According to Katie Burgess, executive director of the Trans Youth Support Network, McDonald was placed “on trial for surviving a hate crime.” The prosecution refused to consider the nature of the threats made against McDonald when they deliberated on whether she reasonably feared that her life was in danger. Claims of legal neutrality therefore allowed the court to ignore McDonald’s social vulnerability as a Black transgender woman, shifting the blame for the attack onto the shoulders of the victim.

But if CeCe McDonald had been attacked in an SYG state, would the outcome have been any different? Widespread transphobia and homophobia construct gender-nonconforming people of color as perpetrators of crime, rather than potential victims. Ky Peterson, an African American trans man, was twenty years old when he was attacked in Georgia, an SYG state. On October 28, 2011, Peterson was walking home when he was hit on the head, dragged into an abandoned trailer and raped. Eventually assisted by his brothers, who followed the sounds of his screams, Ky threw off his attacker, seized his gun from his backpack and fired. Samuel Chavez, a twenty-nine-year-old Honduran immigrant with a history of assault, lay dead on the ground.

In their panic, Ky and his brothers attempted to hide Chavez’s body. They eventually confessed to police, but law enforcement concluded that the shooting resulted from a botched robbery. In spite of positive rape-kit results, which confirmed the assault on Peterson, police concluded that he and his brothers had lured Chavez with the promise of sex. Peterson was charged with armed robbery, aggravated assault, malice murder, two counts of felony murder and three counts of possession of a firearm during the commission of a felony.

Peterson had purchased his gun after a prior rape, and after the police had been unresponsive when he reported the assault. As an African American, gender-nonconforming individual in the South, Peterson felt that his safety was in his own hands. His decision to arm himself conformed to the principles of DIY-security citizenship, but he ultimately suffered the consequences of the law’s intrinsic biases. Journalists Mitch Kellaway and Sunnivie Brydum asked, “Could Georgia’s police even fathom a Black, masculine person being a victim of sexual assault, being the target of a violent attack that was unprovoked, killing in self-defense?” In spite of the evidence, and the fact that Peterson had been raped before, the answer was an unequivocal no.

Peterson’s public defender failed to invoke SYG laws at his trial, nor did he inform Peterson of the state’s SYG provision. In August 2012, Peterson was sentenced to twenty years for involuntary manslaughter. He remains imprisoned at Pulaski State Prison, a medium-security women’s prison in Hawkinsville, Georgia. As of spring 2016, Peterson is trying to find a new defense team to appeal his case. As a young, gender-nonconforming person of color with limited means, Peterson faces an uphill battle in his quest for justice.

Taken together, these cases highlight how DIY-security citizenship contributes to the exclusion and criminalization of people who occupy non-dominant subject positions. Joey Mogul, Kay Whitlock and Andrea Ritchie call these exclusionary frames the “queer injustice” of criminal law. Gender-nonconforming and nonwhite individuals’ demands for inclusion and equal treatment are threatening to the sanctity of cherished social boundaries separating white from nonwhite, male from female, safe from unsafe. For these reasons, their access to the law’s equal protection remains elusive.

People whose gender presentation does not readily conform to tidy delineations of masculinity or femininity often trigger terror and rage in an intensely transphobic nation. The National Coalition of Anti-Violence Program found that 72 percent of the victims of hate-crime homicides in 2013 were transgender women, 67 percent of them people of color. The report also found that transgender people of color were six times as likely to experience violence at the hands of police as gender-conforming whites.  Not surprisingly, as evidenced in Ky Peterson’s decision to arm himself after his rape and the police failure to investigate it, LGBT people of color are less likely to seek out state support or protection when they most need it. In our culture, gender-nonconforming individuals, particularly people of color, are seen as threatening to our most deeply ingrained conventions of social belonging. Thus, homophobia and transphobia undermine victims’ claims of being threatened, preventing most law enforcement officials and civilians alike from seeing their fears as “reasonable.”

Because they rely on the existence of reasonable threat—or what an “average person” would find threatening or dangerous—contemporary SYG laws are inherently biased. “Average people” are coded as race and gender neutral, which in practice is assumed to mean white, gender-conforming and typically male. Thus, it’s not surprising that SYG laws make it easier for straight, cisgender people to kill queer people, for white people to kill people of color and for men to kill women, while preventing targeted minorities from defending themselves.
Excerpted from Stand Your Ground: A History of America’s Love Affair with Lethal Self-Defense, by Caroline E. Light (Beacon Press, 2017). Reprinted with Permission from Beacon Press.

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