(Trans)forming the provocation defense.

• Author: Tilleman, Morgan

"My family, some who are with me here tonight, always loved and supported Angie. We understood that she was born in a boy's body but she was a woman. So many transgender people do not receive that love, acceptance and support." --Monica Zapata (1)

1. GREELEY, COLORADO: JULY 17, 2009

   Sometime in 2008, Angle Zapata, then eighteen, met a thirty-two-year-old man on a social networking site called Moco Space, (2) and they began to chat. (3) Later that year, in mid-July, she met that man, Allen Ray Andrade, in person for a date. (4) A few days later, Angle's sister, Monica Zapata, found Angie's body in Angle's apartment, stiff and "covered with a bloodstained blanket." (5) She had been beaten to death with fists and a fire extinguisher. (6)

   Angie Zapata was not an ordinary homicide victim, however. She was "a teenage girl in every sense but the biological one," according to her sister. (7) When Angle was at her sister's store, men "would make excuses to hover [around her]," drawn by her "stunning" appearance. (8) Angie, who was born Justin David Zapata, began presenting her gender as female full-time in high school. (9) Her family and friends supported her as she grew towards adulthood as a woman. (10) Angie Zapata was transgender, and the trial of Allen Andrade, her killer, revolved around whether that fact partially justified her murder. (11)

2. THEORIES OF THE ZAPATA CASE

   Less than a week after Angie Zapata's death, police in Colorado arrested Alien Andrade when he was found using Monica Zapata's car and credit card. (12) During questioning after his arrest, Andrade told police "he had attacked [Angie] upon discovering that she was biologically a man" following sexual activity with her. (13) Melanie Asmar filled in the gaps between Angie and Allen Andrade's first meeting and Angie's brutal murder.

   After their initial meeting in person, Angie spent three days with Andrade before leaving to watch her sister's children on July 16, 2008. (14) According to his statements to the police, Andrade spent that day by himself in Angie's apartment, where he increasingly suspected that she was not, in fact, "female." (15) He claimed in the affidavit that he forced the issue with Angie that night, and that she responded, "I am all woman." (16) He claimed he asked for proof, which she refused; he then reached for her crotch, where he felt Angie's penis. (17) According to the affidavit, Andrade responded by punching Angie until she fell to the floor, at which point he hit her over the head with a fire extinguisher twice. (18) After she fell to the floor, Andrade covered her body with a blanket. (19) Then, because he "heard gurgling sounds" coming from Zapata, he returned and struck her face with the fire extinguisher one more time. (20)

   The brutal details of the crime were clear, but prosecutors and defense attorneys suggested very different motives for the killing of Angie Zapata. Prosecutors painted a picture of a brutal killer motivated by hatred and prejudice who plotted the death of a transgender woman. (21) Given that Andrade had confessed to police, his defense team chose to argue that he had acted "in the heat of passion" upon unexpectedly discovering that Angie had male genitalia. (22) In the words of Bradley Martin, one of Andrade's lawyers, "You will hear him say, 'It happened so fast and so hard, I couldn't stop [the beating]."' (23) Andrade's lawyers based their defense on Andrade's sudden, unexpected awareness of Angie Zapata's anatomical sex. One of his attorneys, Annette Kundelius, told potential jurors at jury selection, "When [Andrade] learned Angie was in fact Justin, he immediately reacted. He had been deceived, and he reacted. He reacted, he lost control, he was outside of himself." (24) Andrade's defense relied on two critical points: first, that Angie "deceived" him about her "real" sex or gender; and second, that this "deception" reasonably caused Allen Andrade to lose control.

   Prosecutors argued that Andrade did not learn that Angle was transgender in the manner he claimed; Weld County Deputy District Attorney Brandi Nieto told potential jurors, "You're going to learn the defendant knew for quite some time that Angie was biologically male." (25) Instead, prosecutors argued, Andrade learned that Zapata was transgender more than a day earlier when he went to traffic court with her. There, the clerk referred to Zapata as Justin, not Angle. (26) Pointing out that the name ought to have made Zapata's transgender status obvious, Nieto concluded, "[Killing Zapata] was not a snap decision." (27) Prosecutors painted Andrade as animated by his prejudice, transphobia, and homophobia. At trial, they entered transcripts of jail phone calls between Andrade and an unidentified woman, where he told her, "It is not like I went up to a schoolteacher and shot her in the head or killed a straight law-abiding citizen." (28) In another phone conversation admitted into evidence, Andrade said, "Gay things need to die." (29) Capturing the theory of bigotry put forth by the prosecution, Nieto summarized the case: "[Andrade] makes it clear there is a difference between killing someone who's homosexual and someone who's not. He knew for some time [that Angie] was transgender, and he brutally killed her because of it." (30)

   After hearing both theories, twelve Colorado jurors took only two hours to convict Allen Andrade of first-degree murder. (31) This is the first

   known case in which an "anti-transgender murder was prosecuted as a hate crime," according to Crystal Middlestadt of the Colorado Anti-Violence Program. (32) The hate crime enhancement to Andrade's conviction added three years to his sentence, a first anywhere in the United States. (33) Zealous prosecutors, strong evidence (including a confession), and a sympathetic victim (34) combined in the aftermath of Angie Zapata's death to see justice done. The Andrade trial might suggest that the law, as written, will protect transgender people--especially now that the Matthew Shepard Hate Crimes Prevention Act of 2009 is federal law. (35) In many cases, however, the evidence will not be as strong.

   Angie's murder and Allen Andrade's trial are an exception; many transgender people die alone and their killers are never found. In 2008, the Gay and Lesbian Alliance Against Defamation documented twenty-one killings of transgender people. (36) Angie's murder is notable only for the fact that it was solved. Other victims have not been so lucky. In February 2008, Simmie Williams, Jr. was shot to death in Fort Lauderdale, Florida; Jaylynn L. Namauu was stabbed to death in Hawaii in July; Nikhia "Nikki" Williams was shot and left to die in a dumpster behind her house in Louisville, Kentucky, just over a month later. (37) These names join a long and growing list of almost 300 transgender people whose killings have been documented by Transgender Day of Remembrance since 1970. (38) The experiences of transgender people across America suggest that more needs to be done to protect them.

3. DEFINING TRANSGENDER

   Some simplification, however fraught with political and definitional difficulty, is necessary for the purposes of this Comment. To begin with, it is important to recognize the difference between sex and gender. Relatively standard definitions of both make the distinction clear: "Sex refers to the classification of being either male or female and is usually determined by the external genitalia. Gender refers to the culturally determined behavioral, social, and psychological traits that are typically associated with being male or female." (39) While not capturing the infinite complexity of the human condition, these definitions will at least clarify the understanding of what transgender means for the remainder of this Comment.

   There is a broad spectrum of gender identity, much of which falls well outside the subject of this Comment. (40) Transgender, however, is often used as an "umbrella term" for those with gender identities outside of simply male/man or female/woman. (41) This Comment is concerned with a discrete subset of gender possibilities outside the norm: people who present as a gender that does not fully conform with their anatomical sex characteristics. For example, Angie Zapata presented as a female but had male sex organs. Similarly, some trans men present as male but have female sex organs. Not all transgender people desire to have sex reassignment surgery--which reshapes the external genitalia to conform with an individual's gender identity--and thus there is a community which will persist in not conforming to the gender/sex expectations of a heteronormative society. Even for those transgender people who do have sex reassignment surgery or surgeries, many non-sex characteristics--such as facial shape, voice, and stature--are not changed by surgery. (42) Angie Zapata was a pre-operative transsexual because she had not undergone sex reassignment surgery before she was murdered; she was also transgender, and would remain so after any surgery. (43) Although scholars, journalists, and commentators use different terms in referring to individuals whose gender presentation does not match their anatomical sex, this Comment will use the term transgender to signify all people whose presented gender (clothing, hair, carriage, etc.) does not conform to their anatomical sex at birth. (44)

4. THE PROVOCATION DEFENSE

   Traditionally, the provocation defense has been used by defendants charged with murder in situations where it is understandable that they might be in an abnormal mental state. (45) This Part will explore the traditional application of the provocation defense before examining the development of the gay panic defense as a specific form of the provocation defense. It will then discuss how the gay panic framework has been extended to cases with transgender murder victims.

   In essence, the provocation defense is simple: when a defendant kills in the heat of passion, what...