The Failed Logic Of "Trans Panic" Criminal Defenses

Demonstrators seeking justice for Laude during a protest in Manila in October 2014.

Romeo Ranoco / Reuters

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.

Joseph Scott Pemberton (right)

Jay Directo / AFP / Getty Images

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 illnes