Be Killed or Be Caged?
BY Toshio Meronek
July 18 2013 4:00 AM ET
This summer, after a string of high-profile incidents of anti-LGBT violence beset New York City, the City Council began sponsoring free self-defense classes for LGBT people in all five boroughs. Put to use, such classes could save lives. But for some, they could also translate into a prison sentence.
Across the United States, LGBT people are arrested for acting in self-defense — particularly people who are transgender, low-income, and of color.
Ask Patreese Johnson, who will be released from a New York State penitentiary in August after seven and a half years inside. When she departs Taconic Correctional Facility on August 13, Johnson will leave with family ties weakened by distance and time, little money, and tough job prospects. All this, her advocates say, for defending herself against a homophobic, misogynist attacker who ended up facing no criminal charges. So, they ask, is Johnson in prison for the offense of surviving?
For many gender and sexual minorities, they see two choices when faced with a violent situation: Take the harm lying down, or fight back and face time behind bars. In Johnson's case, she was determined not to end up like her schoolmate from Newark, Sakia Gunn, another lesbian who was killed in 2003 after turning down the sexual advances of two straight men.
In 2006, Johnson was one of a group of seven black lesbians from New Jersey who were walking down Sixth Avenue in New York City's West Village when she said a man selling videos on the sidewalk began making sexual advances toward one of them. Grabbing his crotch, he shouted come-ons like "I'll fuck you straight, sweetheart!" The women walked on, but he followed, and threw a lit cigarette at one of them. That's when a fight broke out.
Security camera footage shows the man, Dwayne Buckle, choking one of the women and pulling patches of hair from another's head, as some of the other women attempt to fight him off. At one point during the confrontation, Johnson reaches for a steak knife she carried in her purse for protection. Several still-unidentified male bystanders intervene. Although Buckle later told police that two men had attacked him, it's unclear who actually ended up leaving Buckle with knife wounds that resulted in a five-day hospital stay, because Johnson's knife was never forensically tested. The women left the scene before police arrived; when they were later arrested, the NYPD told them they'd search for the two men. But no additional arrests were made.
The women were demonized by press accounts. The New York Post's headline read "Attack of the Killer Lesbians," while the Daily News described them as a “lesbian wolf pack.” In court, Buckle changed his story, saying that one of the women had stabbed him, and that the group was guilty of "a hate crime against a straight man." Buckle spent five days in the hospital; four of the women, none of whom had previous criminal records, got prison terms ranging from three-and-a-half to 11 years. Two of them were mothers of small children. A national campaign to "Free the New Jersey Four" followed; a documentary film will premiere next year.
A few weeks from her scheduled release, Johnson is surprisingly upbeat. “Just one day in prison is hell, but you have to make the best out of any situation,” she says. Occasional visits from her nieces have kept her spirits up over the years, as have her “girls” — close friends she’s made inside who “can always make me laugh.”
The tabloid media’s portrayal of Johnson and her friends has, predictably, made her untrusting of what she reads in newspapers and sees on TV. “If it wasn’t for my case I would most likely believe everything the media puts out,” she says. Now, “I question everything.” When she’s allowed TV privileges, she mostly sticks to The Weather Channel.
A Violent System
On November 20, 1999, in San Francisco, transgender people and their allies gathered at a vigil for Rita Hester, a transgender woman who was stabbed 20 times in an apparently transphobic attack in Allston, Mass., the year before. That gathering sparked the annual Transgender Day of Rememberance, which now, 15 years later, has grown to commemorate all known trans people killed in such attacks. Candles light up in hundreds of cities across the world as vigil-goers grieve the many transgender lives cut short due to anti-transgender bias each year. TDOR’s organizer, Gwendolyn Ann Smith, says her “original intent was to draw attention to, within the transgender community, the deaths that were going on. I was trying to show the community, which was not paying attention to all these deaths that were happening.” Awareness has grown beyond the trans community, but the killings continue. “You’ve got a trans person in the United States killed every couple of weeks,” explains Smith. “You’ve got a trans person around the world killed, give or take, every 48 hours. So it’s still very much an issue,” especially among young, trans women of color, says Smith.
Patreese Johnson's case is far from the only instance where queer people of color have been sentenced to jail time for what they say was self-defense. In the summer of 2012, CeCe McDonald (pictured above), a black transgender woman from Minneapolis, was charged with second-degree murder for allegedly killing a man who had a swastika tattoo, and according to witness reports had called out "nigger" and "faggot" prior to attacking McDonald. Likely partially due to widespread solidarity actions and criticism in the press, her sentence was reduced to manslaughter in a plea deal. She's currently serving 41 months in prison.
“I wish that situation had been different, and CeCe had not had to act in self-defense,” laments Smith. “She did have a chance to fight back in an attack. And it really sends the message — when we stand up for ourselves, when we actually fight back, we end up in prison. And if we don’t fight back, we end up dead. It leaves us in a situation where, what do we do?”
According to recent studies from the National Gay and Lesbian Task Force and the National Center for Transgender Equality, between 16 and 33% of transgender people have spent time behind bars, compared with less than 4% of the general U.S. population.
And LGBT prisoners face abuse at much higher rates than their straight counterparts. The Department of Justice’s latest survey, released in 2012, found about 5% of straight male former prisoners who reported they had been sexually victimized by prison staff. Among gay and bisexual male former prisoners, the number rose to nearly 18%. Even Michael Freeman, the prosecuting attorney who argued that McDonald should be locked up, admitted, "The criminal justice system is not built for, nor is it necessarily good at, solving a lot of society’s problems.”
Could more legal protections help? There are, after all, laws on the books that are intended to help self-defenders who end up arrested, like battered spouse defense laws. But with lots of criteria to meet, they’re tough to prove in court. “Stand Your Ground” laws, which allow people to use lethal force for self-defense when there’s “reasonable belief” of a threat, have come under fire for racial disparities: The Urban Institute found that in states that have such laws, when white shooters kill black people, 34% of the deaths are deemed “justifiable” in court. But when the roles are reversed — the shooter is black and the victim white — just 3% percent of the deaths are ruled justifiable.
“I think we need to be extremely cautious when advocating for additional legal protections, as they often serve to harm the very people they purport to protect,” says Matthew Luton, an attorney who works with the Transgender, Gender Variant, and Intersex Justice Project in San Francisco. He points to hate crime laws, which serve to funnel more people into a prison system where certain people, especially low-income, gender and sexual minorities of color, are overrepresented and face heightened rates of abuse.
“Currently the way the state responds to hate violence is only through penalty,” — often with a prison sentence — “and not through trying to support things that could prevent the violence from happening in the first place,” adds Chai Jindasurat, programs coordinator of the New York-based National Coalition of Anti-Violence Programs. “A lot of the people who are being killed at higher rates are often people of color, are often transgender women, and are often low-income or homeless.” With job discrimination against gender and sexual minorities still legal in many states, many people turn to “survival crimes” such as sex work to support themselves, Jindasurat explains. “So in addition to alternatives to incarceration, we think anti-violence strategies should also include things like anti-homeless strategies, like jobs programs targeted at certain communities…as well as things like removing barriers — things like access to assistance for people with criminal records.”
Out in the Streets
In New Orleans, youth organizers like BreakOUT!’s Derwin Wilright, Jr. are making headway outside of the courts. The city has a notorious police department — in fact, things have gotten so bad, the federal government has taken over supervising the department.
As a 21-year-old BreakOUT! member testified before the New Orleans City Council last October, “walking down the street while being young, black, and transgender is considered a crime.” Among black trans women in particular, police stop-and-searches are so common that the community has devised a nickname for the unofficial “crime:” Walking while transgender.
A survey BreakOUT began conducting earlier this year as part of its "We Deserve Better" campaign has already yielded some ugly results: out of 30 trans survivors of violence surveyed, 15 said they were arrested when they were the ones being assaulted.
But BreakOUT!’s persistence seems to be paying off. The group recently met with New Orleans mayor Mitch Landrieu as part of a coalition to address the violent Orleans Parish Prison, where many transgender women are housed with men, and are at risk for sexual abuse. The group also partners with other organizations whose members are harassed simply because of who they are, such as the immigrant-focused Congress of Day Laborers.
And just days after Wilright expressed wanting to see the NOPD adopt a policy stating that “you can’t treat LGBTQ people differently on the job,” the department released new LGBT-focused regulations, on the anniversary of the Stonewall riots. “Officers shall not use an individual's actual or perceived gender identity, or sexual orientation as reasonable suspicion or probable cause that an individual is or has engaged in any crime,” reads one directive. Whether the officers will put the policies into practice remains to be seen.
In the meantime, many LGBT New Orleanians continue to be wary of the police. “Oftentimes the cops are being more invasive with their searches on LGBTQ folks. Or officers take in the people who actually make these calls," explains Wilright. "That’s definitely not an incentive to make me think that I’m going to call the police, if everyone around me and folks that look like me are being arrested when we’re facing violent situations.”
According to BreakOUT!’s findings from community surveys, it’s also not unusual for police to ignore calls for help from LGBT people.
Jindasurat, whose organization campaigned to get the charges against CeCe McDonald dropped, agrees. “There’s a very real fear in reporting to law enforcement for certain LGBTQ communities, and it’s really rooted in a very real threat of violence from police,” says Jindasurat. Last year, police officers themselves “made up roughly a quarter of…hate violence [offenders],” according to the organization’s annual report on violence against LGBT people nationally. “Particularly trans women of color are more likely to experience hate violence” from police officers, he says.
Self-defense classes to protect against violence from other citizens are one thing, but Wilright stresses that LGBT people need to “know your rights. So that people know what to say when the officer asks certain questions. Policing [of LGBT communities] isn’t going to stop tomorrow.”
In California's Bay Area this spring, a support group for Patreese Johnson and the New Jersey Four began collecting money so that Johnson won’t have to worry about living expenses for a few months while she adjusts to the outside world. A member of the NJ4 Solidarity crew, Xan West, remembers hearing about Johnson’s situation, and fearing that the same thing could happen to her. “This is my worst nightmare,” she remembers writing in an email about the case to a friend.
Growing up in Oakland, California, with its above-average rates of violent crime, “carrying weapons, and thinking about how I can defend myself is familiar” to West, as is the “the feeling to know you can be attacked with no recourse” if you’re from a low-income background, and are thus at increased risk for police targeting. She insists that LGBT advocacy organizations ignored the New Jersey Four and similar controversial cases. She also thinks that since that night in the West Village back in 2006, nothing has changed for queers of color from low-income backgrounds. “I still live with the same fear Patreese was living with the night she placed that knife in her bag,” she says, pointing out that gay “marriage doesn’t really matter to people who are in danger.”
Johnson and McDonalds’ cases are among the few that made it into the edges of the mainstream consciousness, but they know they’re not alone. There’s Luke O’Donovan, the gay man attacked at a New Year’s Eve party in Reynoldstown, Ga., last year. And Christina Sforza, the trans woman beaten by a McDonald’s manager in New York City, the same year the New Jersey Four were arrested. Lesbian Laura Gilbert was the only person arrested in a small-town Alabama bar fight, after a dozen straight patrons apparently ganged up on her. There are countless more LGBT people who stood up for themselves and ended up in handcuffs.
McDonald blogs from prison, via supporters who post her writings online. In an open letter to other women who wound up in prison for defending themselves, she writes:
How can society say that it detest[s] and challenge[s] violence against women, when there is very little, if any, real help for us, and the help we give ourselves result[s] in punishment?
…Patreese Johnson, Charmaine Pfender, Marissa Alexander, and Tanika Dickson. I LOVE YOU ALL! We are all victims of violence and the injustices and oppression of a faulty legal system and the PIC. And in memoriam of all our fallen sisters, this is for you! Our flames of resilience and tenacity burn bright in the efforts of a revolution for women. We will not give up until there are the necessary changes in this world for better protection and equality.
After almost eight years, does Johnson still feel anger toward Dwayne Buckle? “Just a little bit,” she says. “Only because he cannot admit his fault. I think if it wasn’t for God and the men in my life I would probably hate him, but I don’t. I pray for him and his loved ones every day. I wish him well in life.”
When she gets out, her desires are ordinary things those of us on the outside take for granted. Eating some “real food,” and sleeping in a “real bed.” Shopping. And getting to know her 11 nieces and three grand-nieces and nephews, some for the first time. She’s a little worried it’ll be rough adjusting to the outside world, but is mostly optimistic. “I’ve survived prison. I’m sure I can survive any other struggles in life,” she says. “I’ve always said to all the women who are in prison with their heads still high…that if we can get through this ‘world within a world,’ the real world is nothing but a breeze.”
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