When Joseph Scott Pemberton – the main suspect in the death of slain transwoman Jennifer Laude – finally told in court his side of the story, he supposedly said he went with Jennifer to “have fun” – i.e. have sex. And– as per the statement given by Atty. Benjamin Tolosa Jr., one of the Filipino lawyers of Pemberton (interviewed by GMA News TV on August 25) – what Pemberton desired was alleged to be different from what Jennifer wanted, which was “to deceive another man”.
As soon as I heard this, I was immediately reminded of the continuing lack of awareness on sexual orientation and gender identity and expression (SOGIE) of so many people (i.e. referring to Jennifer as “another” man). But another thought that came to my mind was: Here we go with the trans panic defense.
Not dissimilar with gay panic defense, trans panic defense is a tactic used to ask a judge (or a jury in other countries) to “find that a victim’s sexual orientation or gender identity is to blame for the defendant’s excessively violent reaction. The perpetrator claims that the victim’s sexual orientation or gender identity not only explain – but excuse – their loss of self-control and subsequent assault of an LGBT individual.”
It is a tactic, a strategy used to “bolster a claim of insanity, diminished capacity, provocation, or self-defense”. Put another way – and in the case of Jennifer – it’s akin to saying that it wasn’t Pemberton’s fault he lost control; Jennifer “tricked” him, so he shouldn’t be faulted for “losing his mind”.
This transfer of blame from the one who committed the crime to the victim is important because “under general criminal law principles, adequate ‘provocation’ by the victim can reduce murder to manslaughter (a less serious homicide crime). The law recognizes that sometimes a person can be provoked into committing a violent act and that a provoked person should not be punished as harshly as someone who commits murder in cold blood.”
As noted by Atty. Tony La Vina, Dean of Ateneo School of Government – Ateneo de Manila University (also interviewed by GMA News TV on August 25), the mention of mitigating circumstances (e.g. “nalinlang” or tricked) is important because it could spell the difference between murder versus homicide – the former could carry a sentence of reclusion perpetua or at least 20 years imprisonment, while the latter could carry only as less as two to three years imprisonment.
At least overseas, there are already moves to curtail the use of gay panic defense/trans panic defense – e.g. in 2013, the American Bar Association urged federal, state, local and territorial governments to “take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.”
This move to stop using this tactic is important because this tactic/defense/strategy converts the narrative – that is, it turns the perpetrators into the “real victims”, with the gay or trans victims then becoming the “perpetrators”. Forget that the victims are dead. In this narrative, they “deserved” what they got.
And this gets to me. BIG TIME.
As a somewhat effeminate student in an all-boys’ school, I was pushed and shoved against walls. In fact, there were times I had to take a different route going to and leaving school just to avoid those who may bully me. And when I finally gathered the strength to complain to a few teachers, I was told it wasn’t the fault of the bullies; instead, it was my fault because, as one teacher said to me (and I can still remember this line), “bayoton man gud ka (you’re effeminate).”
I know of a gay man whose father stuffed him in a sack, and then – after tying the opening of the sack – started hitting the sack with wood. The gay man supposedly “deserved” what he got because he’s gay.
I’ve heard of one gay man in Mindanao who has a relative who pulled his teeth one by one with a pair of pliers (and without anesthesia at that). He was told it wasn’t that relative’s fault; he’s gay and so he was “asking for it.”
In Cebu, a transwoman was placed in a cage reserved for fighting cocks. And her being caged was also blamed on her – even if she was only nine or 10 when she was caged. She was perceived to be “bayot (gay)”, so she “deserved” what she got.
In Jolo, we heard of a lesbian whose father had her raped to “correct” her SOGIE. The family didn’t see anything wrong with what was done to her; it was the lesbian’s “fault” she’s the way she is.
Still in Jolo, we heard of a transwoman who was raped – and when she reported what happened to her to the law enforcers, she was mocked because, apparently, she “asked” for what happened to her. In short, she “deserved” what she got; she had it coming for being trans.
We’d run out of LGBT people if we keep “excusing” those who hurt us, and then just claim that we LGBT put them in that situation in the first place because – Hey! – we are who we are.
No, sir/ma’am, we’re not asking for it. So stop making it about us when it’s about you and the errors of your ways.
Because – let me simplify my argument – your phobia of LGBT people is not an excuse for hurting or killing us.