In a recent post on Lexie Cannes’ blog, Lexie draws attention to a disturbing case in Sweden involving a cis man who attacked and sexually assaulted a non-op or pre-op trans woman, possibly under the assumption that she was cis (however, I think we should be careful when dealing with that assumption… it’s always possible that the man knew she was trans all along and just created a different story after the fact).
According to Lexie’s English reconstruction from the original Swedish, what happened is that “The attacker brutally beat the victim and ripped off her pants in an attempt to rape her. A witness rushed to the scene and intervened. The police came and arrested the attacker.” Nevertheless, in court the judge “acquitted the rapist because the transwoman had no vagina [and hence] the planned rape would have been impossible to carry out.” The man was apparently convicted of a lessor charge (battery or similar).
I think most any trans woman would be horrified by this result, which seems to suggest that rape doesn’t count when it is committed (or at least intended) against a trans woman (then again I think most people who are simply compassionate would be horrified by this outcome). For one thing, the idea that the woman doesn’t have a vagina means that it is not possible for the man to rape her is completely absurd. It projects a very simplistic picture of what sex even is onto what may well be a much more complex situation (believe it or not, penis-in-vagina is not the end-all, be-all of sexual intercourse).
However, I think in the larger picture of things this is about more than protecting trans women from sexual assault. In fact, I think this case sets an absurdly high standard for what is required to obtain a sexual assault (or intended rape or sexual assault) conviction almost regardless of who the victim is.
Before considering that larger point however, let’s imagine an alternative scenario for what happened: imagine the man in question had not been interrupted by a passerby. Instead the man brutally attacks the trans woman, tears off her clothes, then discovers the fact that she has a penis rather than a vagina. Let’s imagine that in that case he suddenly stopped what he was doing and left the scene. In that case, the judge’s ruling might at least *sound* slightly less nonsensical, since the man would have made an active decision not to rape the woman once he (supposedly) discovered she was trans… however even then the ruling would still be wrong, because the man committed sexual assault by grabbing at her body and tearing off her clothes. It’s still sexual assault even in this case.
However, in reality the man did not make an active decision not to rape the woman. On the contrary, a passerby stopped him in the act that he apparently fully intended to carry out (and which he very well could have, regardless of the configuration of her genitalia). The judge is making an active assumption that the man would have stopped on discovering her genital configuration, which is total nonsense. In fact, the judge’s ruling appears to make the baffling conclusion that intended rape is not actually a crime. That sets a precedent that is truly horrifying for everyone, especially women (cis or trans), who are most often victimized by rape and sexual assault.
Then again, why do we make the assumption that the man thought the woman was cis at all?
In fact, in the well-known case of Gwen Araujo, who was murdered by a group of men she had engaged in sexual relations after (according to their claim) they discovered she was trans. But in fact, there were indications that at least some of these men knew she was trans all along.
So why should the present case be any different? Perhaps the man knew the woman he was sexually assaulting, with the clear intention to rape, was trans the whole time. Why do we, even in the trans community perhaps, tend to assume otherwise? The answer of course is simple: cissexism.
Further, when questioning the man’s intentions, let us accept for a moment the possibility he did assume she was cis. Even then, do we know for a fact he intended vaginal rape? Who’s to say he didn’t intend anal intercourse from the beginning, in which case what difference does it make if she turns out to be trans?
And finally I think it’s worth keeping in mind that it’s perfectly possible that on discovering the woman’s trans status (assuming he didn’t already know), the man could have actually done something worse than his original intent of assaulting her and raping her. I see no reason to give an intended rapist the benefit of the doubt, which the court has clearly done (and then some) in this case.
Overall I think this disturbing case sets a terrible precedent on a number of levels. For one thing, even if the court sets aside the charge of intended rape, how can it justify setting aside sexual assault when the man actually carried that out, and was in fact caught in the act? Secondly, the idea that a man can simply say “Oh, I thought she was a cis woman!” and get off at that is just bizarre. Indeed, think about the fact that trans women are in fact far more likely to experience sexual assault in general. Now, what if a man were to assault a cis woman and then later say, “Oh, I stopped when I realized she wasn’t trans! I just don’t like trans women.”
The fact is that sexual assault against women is just that: sexual assault. Arrest that shit.