The Crime of Defending Oneself Against Homophobia

On August 11th, Luke O’Donovan goes on trial for defending himself against a homophobic attack. Yes, you read that correctly. Somewhere between five and twelve people attacked Luke while calling him a faggot, early in the morning on New Year’s, 2013, and Georgia prosecutors have decided to charge him, and not his assailants. Nor are the charges light: five counts of aggravated assault with a deadly weapon and one count of attempted murder, meaning that, if convicted, Luke could spend decades in prison.

After O’Donovan was seen kissing and dancing with other men at a party in an Atlanta neighborhood, a mob of mostly drunken individuals punched him, stabbed him, and stomped on him while he was on the floor. Five of his assailants ended up with knife wounds. Despite a prevalence of witness statements in O’Donovan’s favor (the only prosecution witness who is not one of the assailants and was
not drunk that night is the sister of one of the assailants), the state has decided to carry out their own lynching, within legal channels, but backed by the same homophobic prejudices and with consequences potentially far more brutal than the mob assault O’Donovan already suffered.

On July 1, O’Donovan had a self-defense immunity hearing and was turned down. The judge decided not to recognize his right of self-defense and clear him of the accusations. Taking advantage of the fact that at this hearing the burden of proof was on the defense, the unscrupulous prosecutor made a number of absurd claims that O’Donovan’s lawyer had no way of disproving, such as that on a previous occasion O’Donovan had stabbed a homeless person. The prosecutor also referenced Luke’s political beliefs as evidence of guilt. As a result, Luke will have to go to trial and face the threat of up to 110 years in prison.

In the United States, many people consider the right to self-defense sacrosanct, but there is a glaring exception to this principle: anyone who is not a white, heterosexual male. Police, private security guards or citizen vigilantes can assault or kill people of color with general impunity. Trayvon Martin’s killer walked away, and in Louisiana, the Jena 6, six black schoolchildren, were charged with attempted second degree murder for giving a white boy a concussion and bruises. The fact that eventually, they were all only charged as juveniles (one was initially convicted as an adult despite being only 16) and convicted of simple battery does not change the fact that the justice system never recognized that they were the ones acting in self-defense. Prior to the fight, nooses were hung as a threat against black youths who had entered an unofficial “whites only” part of the playground. Such a threat is often a direct precursor to lynching.

Perhaps even more invisible is the violence against trans and queer people. In Tennessee, in one of relatively few cases that got media coverage, Duana Johnson was beaten by police and refused medical care after being arrested for prostitution. The two cops lost their jobs, but subsequently Johnson was killed execution-style. A month later, Leeneshia Edwards, another black transgender woman, was shot and killed in Memphis. The list of homophobic and transphobic murders available on Wikipedia is far from complete, but the unfamiliarity most people will have with the names of those killed shows how silenced their murders have been.

When transgender or queer people defend themselves from such violence, the law usually steps in to pick up where the vigilantes left off. CeCe Mcdonald was sentenced to 41 months in a male prison, accused of fatally stabbing one of her assailants with a pair of scissors. The group of white women and men that attacked her yelled transphobic and racist insults, one of them starting the fight by smashing a bottle open on McDonald’s face, but to the state, it was clear that CeCe was the one who had exceeded her legally permitted use of force.

That is because self-defense is not a phenomenon that can be objectively evaluated. White people who attack people of color who are crossing borders or transgressing “socially accepted” ways of behavior are defending their “selves” as those selves exist within society (and there is no other kind of self). Heterosexual people and cis-gendered people are defending those white heteronormative persons’ sense of self – based as it is on obediently submitting to social norms regarding gender expression and sexuality – when they attack people who call those norms into question.

On the flip side of the coin, self-defense for trans people and queer people extends far beyond street violence, encompassing the invisible but even more deadly and daily assault by a whole host of institutions, from the medical establishment to the media, that enforce gender roles, spread the myth of two timeless, naturally defined gender categories, and otherwise create the psychological atmosphere that encourages all the other forms of exclusion and brutalization.

This contradiction between the perception of different social groups regarding what constitutes self-defense, and the obvious privileging of the perception of one social group, explains why a supposedly “common sense” self-defense scenario – mob assaults lone individual, yelling bigoted insults, individual defends herself – is rarely perceived by cops and courts as self-defense, but rather as transgression.

It is often said that the State has a monopoly on violence, and while this is true in an ideal sense, most states throughout history have relied on a certain amount of vigilante violence by privileged social groups against oppressed groups. Among all modern states, this is true – in the US to an extreme degree. Just as all whites during the era of slavery (excluding the sweatshops and prison slavery that still exists today) and territorial expansion were effectively deputized to kill Africans and indigenous people who crossed certain socially imposed lines, there is still a certain deputization or at least official permissiveness that allows white people to brutalize people of color (especially when they are in what’s considered the wrong neighborhood or crossing some other line) and hetero cis-gendered people to brutalize any queer and transgender people who do not act like perfect copies of middle class heterosexual couples.

Gradually, the criminal justice system, the media, the medical industry, and the labor and real estate markets are institutionalizing all these forms of violence. I believe that even in the US, the government would eventually like to revoke the license to kill that has been shopped out among all these deputies, each a potential loose cannon, but only at the point when the various official institutions of social control are omnipresent enough to take on all those functions.

Even if the courts eventually recognize that O’Donovan was acting in legitimate self-defense, he has already been thoroughly punished for having the audacity to protect himself from a homophobic assault. While still injured, he was sent to jail and forced to remain there for two and a half weeks. Anyone who has spent half a month in prison knows that this is a major hardship on a psychological and financial level. In O’Donovan’s case, he lost a stable job, and with medical bills to boo,t he could no longer afford rent – and had to drop out of college. It was also a major hardship for his family and friends.

There is something fundamentally sick about American society when a year in prison is often viewed as a slap on the wrist, and anything under five years is rarely considered hard time. In this climate, no one ever talks about how having to spend weeks locked in a cage before going to trial, or a year and a half under the threat of 110 years in prison, is already a serious form of punishment.

We can hope that O’Donovan is acquitted, and we could also hold protests, write letters, or think of other actions that would make such an outcome more likely. But even in the case of a happy ending, certain social norms have already been defended by the fact that O’Donovan and not his attackers had to go through this process. Racist, misogynist, homophobic, and transphobic violence are daily occurrences, and most of it has long since been institutionalized.

The meaning of self-defense in this setting is a conversation that should happen more often.

People who want to write to the judge can go here for more information.