Only Lance Cpl. Joseph Scott Pemberton knows exactly what happened in the hotel room where Jennifer Laude, a 26-year-old trans Filipina, was found dead. Pemberton, a 20-year-old Marine, says he was unaware that Laude was trans when he accompanied her to a motel room. He claims that, upon discovering her penis, the two engaged in an altercation. He then choked her until she stopped moving and left the room, convinced she was unconscious but alive. Soon after, she was found dead, apparently strangled and drowned in the toilet bowl.
Pemberton acknowledges that he put Laude in an arm lock until she stopped moving. But he denies that he killed her. Prosecutors say Pemberton told a friend, “I think I killed a he/she.” Pemberton says he acted to subdue Laude then fled out of fear that her friends might come to the room and attack him. The judge can decide who’s telling the truth. (Jury trials are not available in the Philippines.)
But whether or not Pemberton is found guilty, his trial has already proved deeply troubling. Pemberton testified that he felt like Laude had “raped” him. He was “repulsed” and “felt violated and angry.” His attorney said Laude acted to defend his honor after discovering Laude had a penis. She argues that Pemberton was “a victim of the fraud committed by a sex worker”—Laude—and lashed out upon discovering that he’d been “scammed.” (Laude’s family denies that she was a sex worker.)
This argument rests on the flawed premise that trans people have an affirmative duty to disclose their genital status to any potential sex partners. But what’s even more disturbing about it is that it is, at bottom, a trans panic defense. Under this strategy, the killer of a trans person can raise three rationalizations for committing murder. First, he can claim that the sexual advance of his victim put him in a state of temporary insanity, leading him to kill. Second, he can claim his victim’s sexual advance was a provocation that partly justified her murder. Third, he can claim that his victim’s gender identity raises the risk that she might somehow cause him serious bodily harm. (The gay panic defense is nearly identical—just swap gender identity with sexual orientation—and equally nonsensical.)
These laughable excuses are sometimes well-received by juries. In the United States, the trans panic defense helped to mitigate the punishment of a high-schooler who shot a trans classmate, execution-style, in front of his entire class. It also reduced the sentence of a man who bludgeoned a trans woman to death with a fire extinguisher. The gay panic defense has a similarly illustrious history: Most notably, it was successfully deployed in a case where a man decapitated, dismembered, and immolated an openly gay man. (The police investigator on the case said that “people who live this lifestyle need to be aware that this will happen.”)
The American Bar Association has issued a resolution calling for the abolition of the gay and trans panic defenses—although thus far, only California has heeded its call. For now, these absurd, unprincipled defenses remain available to most attorneys in the United States. And in the Philippines, Pemberton is absolutely free to deploy the trans panic defense to mitigate the severity of his crime. If he can convince the judge that he grew violent because Laude deceived him, his prison sentence could be reduced by up to 28 years. That would send a clear message to trans victims of violence across the Philippines: You had it coming.