A Reminder About the Ansari Topic: Trans/Gay Panic Is Still a Legal Defense

A Reminder About the Ansari Topic: Trans/Gay Panic Is Still a Legal Defense January 17, 2018

When discussing a woman’s response to nonconsensual sex, recall that it’s still defensible for men to kill a lover based on gay or trans identity.

(trigger warning for discussions of sexual assault and homophobic/transphobic violence)

Photo in public domain. From Pixabay.
Photo in public domain. From Pixabay.

I couldn’t quite put my finger on it right away, but hearing about the “bad date” between Aziz Ansari and Grace made me uncomfortable (as reported at Babe), and not just for the usual reasons (e.g. it can be triggering to read about consent violations if your own consent has been violated before).

Yes, I consider this event to have been a consent violation. And yes, that means it’s assault. As my colleague Lacey Skorepa writes in The Anatomy of a Nonconsensual Sexual Encounter, “If he didn’t ask for consent before he kissed her, if he didn’t ask for consent to engage in sexual activity, then it’s assault. Full stop.”

But here’s what really bothers me: Grace repeatedly expressed discomfort, and eventually left, and eventually talked to people about it. That was her reaction (public-facing, at least). That’s pretty mild compared to what is the expected – perhaps encouraged? – response from men when the sexual encounter goes in a direction that they don’t expect, one that threatens their masculinity.

I’m talking about gay and trans panic legal defenses, which basically say “I lost my damn mind when I found out the person hitting on me – or that I was hitting on – was gay or trans, and so I can’t be held fully responsible for murdering them.”

The LGBT Bar explains the gay and trans panic legal defense as such:

Gay and trans “panic” defense tactics ask a jury 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.

California has banned these defenses since 2014, Illinois joined in 2017, and a few other states are on the way. But that means that in the majority of the United States, a man who kills a romantic or sexual partner – or just a human who’d expressed interest, or been of interest to the perpetrator – can use the victim’s gay or trans status as a legal defense in court.

The Daily Beast has a more in-depth article covering the topic and the push to get more states to ban its use as a valid legal argument. It’s obviously terribly dehumanizing for LGBT folks to have it legally admissible in court…but I wonder what would happen if we considered it from a heterosexual perspective. Like, why don’t we see women who feel threatened or violated by men’s sexual advances responding with court-admissible violent rages? Oh, right, because they’re often afraid of their safety if/when they even so much as deliver a “hard no” instead of a “soft no.”

So when we’re talking about how Grace responded to Ansari’s advances, and if she shared any responsibility for what happened that night (ew, no, because that’s victim-blaming), let’s just take a second to remember that she tried to communicate about her preferences and boundaries, and she eventually extricated herself. I don’t believe anyone’s allowed to give her shit for talking to the media as long as the gay/trans panic defense is legal, since communicating about what happened is WAY less violent than actually killing a person because they threatened your sense of self (which, for many invoking the gay/trans panic legal defense, is about an internalized sense of heterosexuality and/or masculinity that lashes out when questioned).

To return to my Skorepa’s post:

All of the extraneous details that we dwell on, the fact that her expectations for the evening may have been different than his, the fact that she met him at his apartment or agreed to go back to his apartment, the fact that he’s famous, etc., have no bearing on whether or not Aziz Ansari committed sexual assault. All of those extraneous details are just noise; noise which reveals that we have some serious work to do with regard to how respond to these types of reports and the systemic gender-driven inequities that are both embedded in these stories and our responses to them. By all legal definitions, Aziz Ansari sexually assaulted Grace. Full stop.

This is rape culture: a system that normalizes men’s aggressive sexual behavior. This aggression exists on a continuum, from acts that aren’t terribly violent but still constitute legal sexual assault (such as Ansari’s behavior toward Grace) to acts that culminate in murder. The common thread is masculinity – what is perceived as normal/natural for men to want, and how they acquire it. The demands of hegemonic masculinity, especially in a homophobic and transphobic culture, make violence a suitable way for a man to resolve the contradictions of having acted in ways that supposedly violate his manhood (e.g. desiring someone who turns out to be trans, or being hit on by a gay dude).

I don’t mean for this to be a man-hating feminist moment; rather, I think it’s possible to identify and dislike the effects of masculinity as a socializing system, without extending that dislike to all men. (pro tip: if you’re the kind of guy who thinks gay or trans panic defenses are okay, or Ansari’s behavior was 100% okay, I probably wouldn’t like you much anyway)

So, when considering the Ansari topic, or any other case of a woman’s response to a man’s sexual aggression – regardless of whether it crosses the line into sexual assault – let’s take a moment to remember that the gay/trans panic legal defense is still a thing in most of the U.S. Maybe that’s a hint that women know full well how dangerous (heterosexual, cisgender) men can be sexually when thwarted, as gay and trans folks have also long known. Maybe this points us away from the endless agonizing of her actions and towards a consideration of the legal and cultural systems in place that enable the sexual assault and even murder of vulnerable populations.

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