Harassed for Being a Woman, Beaten for Being Transgender
We face harassment and violence both as women and as trans people – but is carceral justice the solution?
This week a young man, 19 years old, was convicted of brutally assaulting a transgender woman.
The case is just one of many where the perpetrator was given a more lenient sentence — in this case, avoiding jail time — due to their use of the ‘trans panic’ defence.
It’s right to point out the inequality trans victims face in the criminal justice system, but it’s also important to view this within the wider nexus of gendered and intersecting forms of oppression.
What else does this case highlight about the way we discuss violence against women and queer people, and the solutions we seek to that violence?
The case
The young man, who was 17 at the time, had met the woman in the hotel elevator, and, after flirting with her, invited her to his room later that evening.
The woman arrived at the man’s room later, before leaving shortly after because she felt uncomfortable.
The young man later found out what room the woman was staying in and approached her there, despite the woman changing her mind and declining his previous offer.
So far, so bad.
Men refusing to take no for an answer in their sexual harassment of women is unfortunately nothing new.
The young man knocked on the woman’s door, and she answered. She told him that she wasn’t interested.
She also told him that she’s transgender. He reacted angrily, replying “what, a man?” and left.
He then returned 20 minutes later and knocked on the woman’s door again. When she answered, he forced the door open and proceeded to violently assault her, kicking and punching her in the head.
The attack was brutal enough that the woman required hospital treatment for a cut to hear head, with a ripped toenail and bruising as well as shoe-marks on her face.
Like many victims of violent, sexually-motivated assault, the woman has been left with serious psychological trauma, and now experiences frequent panic attacks and constantly fears for her safety.
This is a clear-cut case of both sexual harassment based on the woman’s gender and violent assault motivated by transphobia — the latter being a hate crime, which usually means a mandatory prison sentence.
Nonetheless, the judge in this case chose to be lenient, and the young man was given a suspended sentence, ultimately avoiding jail.
If the crime amounted to a hate crime — and the judge was clear that it did — why was the young man spared jail?
Trans panic
This young man’s ‘panic’ after being confronted with his attraction to a transgender woman was accepted, at least partly, as a justification for his violent behaviour.
This is the ‘trans panic’ defence, and it’s not new.
This defence justifies violence against trans women, even when they are the victim of sexual violence, on the admitted basis of transphobia on the part of the attacker.
And it works.
This defence has been used successfully by many men who have assaulted and even murdered women after realising the woman was transgender, resulting in lesser punishments.
This fact highlights the criminal justice system’s role in perpetuating cissexist stereotypes and perceptions of trans women as ‘deceptive men’, who apparently deserve violence and even death as a result.
So, how does this incident, and ‘trans panic’ sit within the wider nexus of male violence against women?
“This wouldn’t have happened to a (cis) woman”
Much of the reporting around this case has (rightly) focused on the ‘trans panic’ aspect.
It is important to acknowledge that this woman was first sexually harassed as a woman, an experience shared by many women, before being assaulted for being transgender: this highlights the multiple forms of violence and harassment trans women are subject to.
Some reporting of this case has argued that the legal response might have been different were the victim a cisgender woman – and this is certainly true.
It has, however, also implied that the victim would have been treated more favourably by the criminal justice system, and the attacker more harshly, were the former cisgender.
I’m not sure that’s necessarily true. Furthermore, I think this suggestion minimises the complex nature of sexism and misogyny inherent in the criminal justice system.
It is important to acknowledge the different treatment of women of varying backgrounds and experiences by the criminal justice system, but it is just as important to view that in the wider relational context of gendered violence and its intersection with other forms of oppression.
One way we can do this is by contextualising the ‘trans panic’ defence within the wider use of ‘rape myths’ deployed against female victims of male sexual violence.
Mythologising violence
‘Rape myths’ are cultural norms which justify predatory, violent sexual behaviour on the part of, most often, cisgender heterosexual men, while blaming women for their own victimisation.
Such myths include the idea that a woman was ‘asking for it’ due to her clothing, or that her rape wasn’t really rape because she didn’t fight back ‘enough’ or because the rapist was a partner (so-called ‘domestic rape’).
These myths are deployed at every stage of the criminal justice system, from the police to the courts, and are so culturally entrenched that they play a part in the low reporting of rape by victims.
Ultimately, the ‘trans panic’ defence is a form of ‘rape myth’, one used to justify sexual and physical violence against trans women.
It is not the only kind of ‘rape myth’ to apply specifically to one group of marginalised women.
The racist myth that women of colour are ‘sexually promiscuous’ has been used to excuse the rape of Black women or blame them for being raped.
The rape of female sex workers (including trans women) has been justified by the notion that sex workers as ‘unrapeable’, as ‘deserving’ to be raped, or being immune to harm from rape because of the nature of their work.
All ‘rape myths’ serve to excuse male violence and blame victims, whether that violence intersects with other forms of oppression or not, within the wider context of our patriarchal (rape) culture.
In terms of the case above, the legal response might have been different had the woman been cisgender.
However, it is also highly likely that the attacker’s lawyers would have deployed a different type of ‘rape myth’, and that the attacker would still have received what we might consider an unduly lenient sentence.
Although this case does highlight the unequal criminal justice response to sexual violence targeted at cis or trans women, it also highlights commonalities in the way the punitive-carceral ‘justice’ system fails women, and especially marginalised women.
So, why do we continue to look to this system as the solution to male sexual violence?
Carceral feminism
Although reporting around this case is critical of the criminal justice response, there is still an underlying assumption (or demand) that this same system will deliver justice for female victims of sexual violence.
This ‘carceral feminist’ approach is part of a wider mainstream (white, middle class, cisgender) feminist approach that looks to existing systems of power to achieve women’s liberation through individual punishment with longer and harsher sentences for abusers.
As Alison Phipps argues:
“We [white women] rely on a third party to take these ‘bad men’ away, usually in the form of an institution or the state. And this White Knight or Angry Dad is patriarchy personified”
— Me, Not You: The Trouble with Mainstream Feminism (pg. 96, para. 1)
Not only does the criminal justice system fail women, it disproportionately fails marginalised women – and it also serves to entrench queerphobic, racial and economic oppression more generally.
Marginalised women, and marginalised communities in general, are hugely overrepresented in the carceral system — not because they commit more crimes, but because they and their communities are unequally targeted and punished by the criminal justice apparatus, including the police.
As Angela Y. Davis puts it “the racialized nature of the criminal justice system is also gendered” (pg. 265, para. 2) and vice-versa: we cannot address the issue of sexism, nor cissexism, in the criminal justice system without also acknowledging and seeking to address the intersecting issue of racism, as well as classism and other forms of oppression.
When we demand ‘justice’ from the carceral system (and consequently endorse that system), we demand a solution to male violence which predominantly benefits white, middle class, cisgender, heterosexual women (although it often fails these women, too) and entrenches the marginalisation of others.
Reimagining justice
An alternative to carceral ‘justice’ lies in community-based and restorative justice practices.
These alternative approaches to seek to empower victims by allowing them to regain a sense of control. They force perpetrators to face the consequences of their actions and encourage accountability by seeing their victims as people and understanding the harm they cause.
Community-based and restorative justice approaches can also entail an educational component that works to alter negative community perceptions of sexual assault victims, as well as working to educate the familial and community structures which perpetuate cultural attitudes and social norms which normalise such violence.
These kinds of approaches challenge authoritative systems, and place power back in the hands of communities. In doing so these alternatives also have the potential to challenge corporate carceralism and its harms.
These are, of course, not perfect or one-size-fits-all solutions. Not every victim will want to engage in alternative forms of justice — and they should never be forced to. Likewise, some perpetrators will not engage with or respond to these approaches.
In practice the move from a primarily carceral system to a system primarily based in community and restorative approaches might involve a ‘spectrum of decarceration’, as Anna Terweil puts it.
Community-based and restorative approaches are also not a cure-all for oppressive social structures — other, parallel responses are necessary, without which there is potential for alternative approaches to justice to maintain systems of oppression and marginalisation.
Our justice
As women and queer people, we are marginalised by the current systems of oppression – and yet we continue to look to these same systems for ‘justice’ and liberation from violence.
By demanding carceral justice, we endorse a system which entrenches our own marginalisation and the marginalisation of others. This needs to change – we need to be more conscious of the type of ‘justice’ we seek, who it really benefits, and what it really achieves.
Instead of vying for the protection and recognition of a criminal justice system which has been central to our oppression, we have to demand and enact our own forms of justice, while challenging existing oppressive systems and institutions.
By doing so we can not only deliver justice for ourselves, but challenge the existing hierarchies of power and their entrenchment of social issues, as well as the marginalisation of ourselves and others.
(Originally published in An Injustice!)