I will be giving a talk, titled as above, at Hampshire College on April 17 in Western Mass. The working title was "Lawrence v. Texas and the Constitutional Right to Gender Autonomy," but that put even me to sleep, and it would be nice to get more than the usual three people to show up on a warm spring afternoon, hence the provocative title.
Justice Kennedy didn't really kill anyone, but he did seemingly kill off police supervision of sexual morality, writing a Supreme Court opinion in the case of Lawrence v. Texas (2003) that strongly defended the sexual freedom of gay people. That same reasoning could be used to secure the right of transgender people to legal recognition of their gender identity. I've discussed transgender constitutional rights here before, but for my next trick, I'd like to try to apply that to a case. That's always the hard part of law: the neat rules don't always fit the messy facts.
I've constructed a fictional case, captioned "The State versus Sam Spade," that I will discuss with the students during my talk at Hampshire. I thought I would share it here with my Bilerico family, and invite you all, as well as Hampshire students, to discuss it online.
I have drawn my hypothetical case from four real ones discussed in the recent excellent article by Aeyal Gross, Professor of Law at Tel-Aviv University, "Gender Outlaws Before the Law: The Courts of the Borderlands," 32 Harvard Journal of Law & Gender (2009). It's well worth a read. I've also added elements from the Sandy Gast case.
In typical law school style, this fictional case is given a humorous touch to make it easier to discuss issues of social injustice without getting so emotionally gravid that anger drives out all logic. The real cases involving real people are tragic miscarriages of justice and there is nothing funny about that. But for purposes of a short talk on a warm summer afternoon, I'm leaving behind the outrage that we all feel about the law's failure to do justice and trying to keep it light. Can you tell where I got the characters' names?
Case Study: The State v. Sam Spade
Facts: After a torrid and tempestuous year-long affair, handsome Sam Spade, 22, and beautiful Brigid O'Shaughnessy, recently turned 18, decide to wed. The two impetuously fly to beautiful Aitch Township, in the State of Hampshire, where they obtain a marriage license and are married by a justice of the peace.
Before they marry, O'Shaughnessy and Spade have a heart-to-heart talk. As the sunset illuminates her hair and dramatic arpeggios punctuate her words, she reveals that she was previously divorced and that her ex-husband Wilmer, a raging alcoholic with a long criminal record, is desperately seeking to exact his revenge for leaving him. Spade, for his part, professes his profound love for O'Shaughnessy and vows to protect her. He reveals to her that he is the heir to the $7 billion Jell-O Pudding Pops fortune, an avid collector of rare South American stamps, and a female-to-male transsexual. He also tells of his divorce after a very brief marriage.
On his knees, he pleads with O'Shaughnessy that he loves her with all his heart and hopes that she will stay with him. Spade holds his breath because O'Shaughnessy, whose best description is "diva," is never very far from a tantrum. She is very surprised, but after a moment to recover, affirms with a heart-felt embrace that Spade is her only love, that she feels alive only when she is with him, and cannot imagine life without him. The couple are then married by the justice of the peace and spend the night in wedded bliss.
The next morning, however, Spade awakes to find O'Shaughnessy gone, and is immediately concerned for her welfare. He goes searching for her at likely places but fails to finds her, returning home very anxious. He is surprised to find her standing angrily by his front door tapping her foot, accompanied by two strangers in blue. It seems those divorce papers of Spade's were not properly filed and the divorce never went through. In fact, O'Shaughnessy was contacted by one Iva Archer, a blonde with a bad attitude, who says she heard about the marriage from a friend, and told O'Shaughnessy that she is still married to Spade. Spade insists she is mistaken. O'Shaughnessy, wanting Spade's head on a platter, nods to one of the police officers. Spade is arrested on charges of bigamy, fraud, impersonation and statutory rape.
O'Shaughnessy later repents after Spade finalizes his divorce from Archer. However, the prosecutor, Kasper "Hang-em-high" Gutman, who is running for re-election on a platform of "protecting your children from dangerous sexual predators," refuses to allow her to drop the charges. Spade contacts you for representation. After considering the following statutes, explain at least one of the defenses you will raise on behalf of Spade in the comments section below.
The following are fictional statutes of the State of Hampshire.
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
3-3-303 Criminal Fraud
A person is guilty of criminal fraud when...(e) one provides information to a government official or employee, knowing the same to be false, with the purpose of obtaining government benefits or privileges based thereon.
3-3-325 Criminal Impersonation
A person is guilty of criminal impersonation when one impersonates another and does an act in such assumed character with intent to injure or defraud another.
3-3-601 Statutory Rape
A person is guilty of statutory rape when...(c) one engages in sexual contact with a person under the age of 18. However, this shall not apply when the other party is over the age of 14, the offender is 22 years old or less, and less than 4 years older than the victim, only the offender and the victim are involved and they are of opposite sex.
27-505 Husband-wife privilege
A husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses. However, these privileges may not be claimed in any criminal case where the crime charged is a crime of violence, bigamy, or incest.