Bittersweet Justice: In the Wake of the Gwen Araujo Trial, Activists Are Grimly Aware of How Difficult It Is to Obtain a First-Degree Murder Conviction When the Victim Is Transgender

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As Gwendolyn Ann Smith organizes the seventh annual Transgender Day of Remembrance--set for November 20--the San Francisco activist is encouraged and pained by the outcomes in two recent murder trials involving the deaths of transgender women.

In the well-publicized Gwen Araujo case, two men were convicted of second-degree murder and each sentenced to 15 years to life in prison after a California jury refused to buy their "transgender panic" defense that they killed the teen in October 2002 due to the shock of discovering that she was biologically male. While the convictions did not include the first-degree murder or hate-crime enhancement charges sought by the prosecution, the verdicts are still seen as a victory because a murder conviction was obtained.

"The verdict was not perfect, but it's a lot more than we could have gotten in the past," admits Smith, who began tracking murders of transgender victims in the late 1990s.

Just 18 days before the Araujo verdict, there was a very different end to a similar case in Fresno, Calif.: Estanislao Martinez, having cited transgender panic and pleaded guilty to reduced charges in the killing of Joel Robles, a transgender woman he went home with and then killed after discovering she was biologically male, received a three-year sentence for voluntary manslaughter, plus an additional year for using scissors as a weapon.

The disposition of this case has left Smith and other activists grimly aware once again of how difficult it is to obtain a first-degree murder conviction when a transgender person is killed. "There's still a lot of work to be done," says a frustrated Smith, herself a transgender woman. '"The Robles case shows that there are still issues. It's really important for all of us to stand up and say, 'It's not tight.'"

Smith will be doing just that on the Transgender Day of Remembrance, which has grown from a candlelight vigil attended by fewer than 100 people in San Francisco's Castro District in 1999 to nearly 200 events held across the United States and in seven other countries.

Smith meticulously tracks every transgender murder she can get information on and posts their status on her Web site, RememberingOurDead.org. The number of murders that she lists has grown to almost 300, the earliest of which took place in 1972.

Fellow activist Ethan St. Pierre, whose transgender aunt, Debbie Forte, was brutally murdered in 1995, also tracks the cases in an effort to bring the situation to the forefront and cast light on the fact that many of these murders are unsolved, or that when suspects are prosecuted they are often convicted of a lesser charge that results in shorter jail sentences.

"My aunt had been strangled, every bone in her neck was broken, and she was beaten to the point where she was unrecognizable. Then she was stabbed three times in the heart. This guy had to leave her body to go find a knife, and they still wouldn't go for first-degree murder," recalls St. Pierre, who had the grim task of identifying his aunt's body. "Our lives just aren't seen as important as non-transgender people. It's really ingrained, and the prosecutors don't believe the jury will convict on first degree. That happened in the case of my aunt."

St. Pierre, himself a transgender man, says he counts seven murders of transgender people in his home state of Massachusetts since the 1970s; of those, he notes that arrests were made in only two cases, each as a result of the killers turning themselves in.

There remains a widespread reluctance by prosecutors to file first-degree murder charges or hate-crime enhancements in transgender murder cases, activists say. In rare cases like that of Araujo where they did go for the most severe charges, juries have not bought it.

"There is something significant with Gwen in that somewhere in this country this year, there was a jury that bought the argument that killing a transgender person was absolutely wrong," says Clarence Patton, acting executive director of the National Coalition of Anti-Violence Programs. …