Abstract

Excerpted From: Shawn E. Fields, The Elusiveness of Self-defense for the Black Transgender Community, 21 Nevada Law Journal 975 (Spring, 2021) (129 Footnotes) (Full Document)

Ky Peterson, a Black transgender man from rural Georgia, had previously been brutally raped while walking home. Mr. Peterson reported the incident to the police, but they never opened an investigation; in fact, the police “could barely be bothered to file [a] report.” As a result, Mr. Peterson began carrying a firearm for personal protection.

On October 28, 2011, Mr. Peterson was again attacked and raped. The man--whose advances Mr. Peterson had rejected earlier that night--approached Mr. Peterson from behind and struck him in the head, rendering him unconscious. When Mr. Peterson awoke, the stranger was on top of him, penetrating him while hurling transphobic insults at him. After a lengthy struggle, Mr. Peterson reached for his handgun and killed the attacker. Mr. Peterson later reported the incident to the police and completed a rape kit, which confirmed the brutal nature of his sexual assault. Nevertheless, police dismissed his claims of rape and self-defense, charging him 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.”

Mr. Peterson's actions arguably fell within the traditional common law definition of self-defense. But they clearly fell within Georgia's expansive Stand Your Ground laws, providing among the broadest scope of self-defense protection for the use of lethal force in public of any state in the country. Mr. Peterson's defense lawyer did not even assert a Stand Your Ground defense on his behalf, claiming that his race and gender identity would make such a defense useless before a rural Georgia jury. While Mr. Peterson asserted self-defense, he was convicted and sentenced to twenty years in prison.

This story poignantly illustrates the systemic under-enforcement and over-enforcement of the Black transgender community by law enforcement. Transgender people of color, particularly Black transgender individuals, “experience violence at a disproportionate rate” in the United States. Black transgender men and women are more likely than their White transgender counterparts--and many times more likely than the general population--to “experience virtually every category of violence, including transphobic family violence, violence in schools and places of public accommodation, and police and prison violence.” Black transgender individuals face among the highest domestic violence rates in the country. And murders of Black transgender individuals have risen dramatically in recent years and are almost certainly underreported.

But as illustrated in Mr. Peterson's case, police intervention and protection for this community remain sorely lacking. Years of anecdotal evidence and recent alarming empirical data show a disturbing ambivalence (or worse) from police when responding to reports of violence by Black trans victims. “Transgender victims of domestic violence report that calling the police frequently results in the transgender victim being arrested, violence from the police, or a total failure to respond to the situation.” Black transgender women regularly report police failing to take reports of violence seriously, because the victim is “really a man.” Indeed, transgender victims of all backgrounds are often as likely to be harassed or sexually abused by police when reporting a crime as they are to have their claims treated seriously and investigated.

Given this systemic lack of protection from the criminal legal system, Black transgender individuals like Mr. Peterson increasingly must rely on self-protective measures to repel the disproportionate rates of violence to which they are subjected. But exercising lawful self-defense exposes the Black transgender community to police over-enforcement of their lawful actions. In this sense, the community feels the dual effects of historic criminalization of the Black community and the transgender community. The centuries' long over-criminalization and over-enforcement of the Black community by police is well-documented, including in the availability (or lack thereof) of self-defense to Black individuals lawfully repelling a violent attack. Rather than providing an opportunity for expanded self-defense protection, Stand Your Ground laws have only reinforced the racially disproportionate impact of self-defense assertions in criminal adjudications.

Police have also singled out and overly scrutinized the lawful actions of the transgender community, from enforcing so-called “impersonation or masquerade laws” and issuing disturbing the peace citations for gender nonconforming dress, to baselessly arresting individuals for prostitution based on transphobic assumptions about sexual behavior. Increasingly, as Ky Peterson, CeCe McDonald, and other Black transgender victims of violence have learned, lawfully protecting oneself from violent physical assault has merely provided police another opportunity to scrutinize, over-enforce, and over-criminalize a vulnerable and marginalized community.

This Essay highlights the need for, and elusiveness of, self-defense as a viable affirmative defense for the Black transgender community and the central role law enforcement plays in this narrative. Police protection is needed but largely remains unavailable to this disproportionately victimized community, making self-defense a necessary last resort. But police over-enforcement and criminalization of this community renders self-defense an elusive tool of legal protection, especially when other institutional actors--prosecutors, judges, and juries--may harbor many of the same pernicious prejudices infecting precincts across the country.

Recent events in Brunswick, Georgia, three hours from Ky Peterson's rape and self-defensive actions, highlight the urgent need to confront this issue. Indeed, when a District Attorney can claim that two White men chasing and gunning down an unarmed Black man in broad daylight as part of a “citizen's arrest” was a justifiable act of self-defense, one cannot help but wonder why Ky Peterson sits in a Georgia prison today.

[. . .]

The experience of Black transgender people in the criminal legal system reflects a “legac[y] of an exclusionary politics of protection,” wherein they are not entitled to the law's protection when they need it most but instead unjustly face its punishment by virtue of their existence. This vulnerable intersectional community experiences criminal violence at rates far in excess of the national average, yet their attempts to seek state protection result in a dangerous mixture of ambivalence, discrimination, and state-sanctioned violence.

Faced with this reality, the Black transgender community desperately needs access to the law's recognition of protective self-defense. Legislative expansions of core self-defense doctrine, problematic as they are for many marginalized communities, should represent an opportunity for this community to exercise lawful self-help measures as a last (and often only) resort. Unfortunately, this exclusionary politics of protection not only excludes Black transgender violence victims from police protection but from legal self-protection when they stand their ground and fight back against their assailants. This Essay highlights the dual problems of under-protection and over-punishment. The solutions--more equitable, just, and compassionate treatment of Black transgender victims of crime--seem obvious. While this Essay does not attempt to sketch out an infrastructure for reform, hopefully shining a light on the problem can inform the urgent conversations to come.

Assistant Professor of Law, Campbell University School of Law; J.D., Boston University School of Law; B.A., Yale University.