Aug 15th, 2008 by Rebecca
I’ve noticed in the years I’ve been out that incidents of transphobic violence seem to be relatively less common in Australia compared to North America. I can think of a few cases that I’ve heard about, none of them fatal. Given this, though, I’ve always been curious as to how our courts would react to the trans panic defence. Tonight, a Victorian Court of Appeal case from May, R v McRae, popped up on one of my lists, and it makes for interesting reading. On the plus side, the court rejected the trans panic defence out of hand - but on the negative, it is plainly obvious from the judgement that none of the learned judges could tell their arse from their elbow when it comes to trans issues, resulting in a two-year cut to the perpetrator’s sentence on other grounds.
I’m comforting by the central focus of the ruling, which did hold that the trans panic defence is indeed bullshit. The judgement contains a number of comments to the extent of “okay, so you might be a bit shocked, but no, you don’t get to beat the crap of her.” It was made very clear that his “shock” would be not be considered a mitigating circumstance whatsoever - and to that extent, I’m pretty relieved. It sends the firm message - from my home state’s highest court, no less - that violence against us will not be excused based on the ignorance of those who would attack us. And the perpetrator in this case, he walked away with a five-year prison term -not bad, considering how often our courts will simply let people walk free with assault and bodily harm convictions, no matter how severe the circumstances.
Unfortunately, this case also reveals two things that should be of serious concern: that the three justices presiding over this case didn’t have the faintest clue about trans issues, resulting in the perpetrator’s prison sentence being lowered from seven years, and that Australian jurisdictions desperately need hate crime laws, something which we currently lack in every state and territory.
There are a few issues here that suggest that the judiciary needs to gain an education in trans issues. The judgement repeatedly and uncritically uses the word “deception” to describe the victim daring to go home with this bastard. Of most concern, though, is the unbelievable ignorance displayed when hearing the details of some of his more tangential appeals (paragraph 22 and 23); the court actually held that the perpetrator’s referring to the victim as “it” was not an expression of contempt, and of stripping the victim of her humanity, but rather that he - and I quote - “simply did not to know how to refer to someone who was male or female.” Which is, uh, what the fuck?!? The panel then goes on to find, as a result, that the trial judge’s emphasis on this led him to place a too-severe sentence. When we’ve got judges ruling on cases concerning trans victims who, while noticeably not being based in their own prejudice, clearly remain very ignorant about fundamental things, this suggests to me that we’ve still got a lot of work to do.
The court also says - and I again quote here:
It must be remembered however that the appellant fell to be sentenced for his offending and not for his lack of understanding or the possession of a reprehensible attitude or bias against a person with the characteristics of the victim. After careful consideration of the transcript of the plea proceeding and the judge’s remarks I have formed the impression that this distinction may not have been properly made, that it probably contributed to the handing down of a sentence that, on any view of the matter, was very heavy indeed when comparison is made with the range of sentences and trends disclosed in the relevant ‘Sentencing Snapshot.
In other words, according to Justices Vincent, Ashley and Dodds-Streeton, that a crime was motivated by bias and hatred is an irrelevant consideration. This is a worrying sign, and it signals that we need to get our act together and start pushing for legislative action. If the courts won’t do it on their own, we need to make it a consideration. I’ve always thought it a bit peculiar that Australia, which is light years ahead of most of the US on LGBT issues (outside of relationship recognition) never got hate crime laws; I suspect because we’ve (thankfully) never had a case like the murders of Mathew Shepard and Brandon Teena on our soil to make this hit home. This doesn’t mean that it’s not our problem, though - and in the wake of the failure of the civil unions legislation in my adopted home in the ACT, perhaps it’s about time we tried to set another legislative precedent.
And on a different note, while I’m on the subject of things legal, I discovered in the detail of the HREOC Report into sex and gender diversity issues (something which deserves a seperate post, but I’m sick and cranky) that there’s another trans lawyer doing the rounds apart from Rachael Wallbanks. As a hopefully future lawyer and as a trans person, it’s comforting to know that there’s actually even a couple people who’ve come before you; we lack so many of the prominent professional role models of those in the States.