Transpeople as child molesters?

Commentary by Riki Anne Wilchins, Nancy Nangeroni, Lynn Walker and JoAnn Roberts

The recent stories of Sean O'Neill, who pled guilty to a single felony charge for statutory rape, and Nancy Miscenti, who pled guilty to similar charges involving sexual conduct with minors, have provoked heated debate within the queer community and media. The cry has been that the community ought not to be in the business of supporting or defending criminals, especially sex criminals, and particularly not pedophiles.

This is an important charge, and goes to the heart of how little the queer community often understands the system of gender regulation in which it is embedded, and which adjudicates our lives. For these cases show the outlines of a disturbing pattern, at the very least raising disturbing questions which indignant moral posturing leaves untouched and unanswered.

The "pedophilia" for which Sean was convicted involved consenting sex between teenagers over a period of months. The parents made no objection to the relationship, until it emerged that Sean had a vagina, and therefore the relationship was "lesbian." The case was primarily the result of angry parents, outraged at Sean's transexuality.

Although one of the teenagers was 13 and the other 18 at the time, nonetheless this is the kind of case which, when it involves the captain of the football team and a cheerleader, is often draws a misdemeanor and a warning.

Instead, the DA brought felony charges totaling a maximum 50-year sentence. When Sean plea-bargained to a single count felony count, the DA requested he be sentenced to a minimum 1 year in prison. Please note: not the local county jail, but the state prison. And note also, the heavy stacking of charges on a financially-marginal defendant who is represented only by a PD, followed by a quiet plea bargain before the judge. No long drawn-out OJ or Menendez jury trials for genderqueers: we're pled and imprisoned the same day.

During cross examination and closing arguments the DA repeatedly cast Sean as a dangerous predator, a pedophile of the worst sort, driven to sexual relations with "children." If it were not for the circumstances, this would have been comical. Sean O'Neill weighs about 90 pounds soaking wet, barely reaching the shoulder of his very petite, female PD.

The case of Nancy Miscenti draws similar and disturbing outlines.

Press reports filed at the time stated that Nancy's PD has publicly "admitted" inappropriate sexual behavior on her part. Yet the "behavior" to which he referred was not pedophilia, but wearing low-cut dresses, making off-color jokes and acting flirtatious. This is scarcely the stuff of which great sex crimes and sexual predation is made.

Like Sean, the Prosecutor stacked charges, opening 1 misdemeanor and 1-2 felony counts on each of 5 files until she faced a maximum 60-year sentence. Sounds depressingly familiar: stacking charges with a financially marginal defendant represented only by a PD, prior to quick disposition by plea bargain. In any courtroom, issues of class and privilege are always seated immediately beside those of representation and justice.

It is similarly disturbing that, Nancy Miscenti, like Sean, continues to deny she did anything wrong. In fact, there is no doubt whatsoever that Nancy Miscenti would be a free woman today if she'd admitted guilt. Her attorney Todd Edgington confirms that the judge offered to let her off with probation if she would admit guilt. It was her continued protestations of innocence to a crime she says she did not commit, and her plea of "nolo contendre," (literally "I do not to contend" rather than "I'm guilty") which was cited by the judge when he sent her to prison.

In fact, it is fair to say that neither Sean's nor Nancy's attorney[s] believe today that their clients broke the law, much less that they are predatory pedophiles.

Although a psychological review by the state's own representatives determined that Nancy Miscenti constituted no further risk if left free, she was nonetheless put away. Again, here is a case which might have resulted in a misdemeanor, a fine, and probation replaced with felony counts and prison time. And note once again, Nancy Miscenti was sent to prison: not the county jail, and in this case not even just any prison, but the state of Connecticut's maximum security prison for women, a place so dangerous that the warden cannot even risk putting a transperson in with the population, but has kept Nancy isolated for her own protection.

Why is Nancy in this particular facility? Does this ill-conceived and blatantly punitive incarceration not at least raise the specter, the suspicion, that this judge was unduly prejudiced and angered towards this defendant?

Indeed, the judge apparently made no determined effort to resolve critical differences of fact between Nancy's version of events and those of the DA. Nancy was apparently presumed guilty from the start.

Even the statements of the children she allegedly "molested" are highly problematic.: as any number of high-profile recovered memory trials and child-care cases around the country have demonstrated, children will "remember" whatever adults require of them and their testimony is exceptionally vulnerable to contamination by vigorous prosecution.

When I raised some of these issues with Nancy's attorney, Todd Edgington of the Manchester Connecticut PD's office, he remarked that the current climate made it practically impossible to seek a jury trial in Nancy's case.

I also spoke to Sean O'Neill's attorneys, Bill Martinez and Ilene Bonnet of the Colorado Springs Public Defender's Office. In discussing cases of this type, where a transperson is charge with molesting children, they stated: "The disparate treatment between transexuals and 'normal' sex offenders makes it that much easier for the prosecution to stack and maximize the charges, rather than achieve any kind of just resolution of the case. The simple fact of a defendant's being transgendered dramatically shrinks the 'presumption of innocence,' impossibly complicating any chance of mounting a fair and effective defense. Furthermore, the highly incendiary and inflammatory nature of the charges themselves, the public accusation of one's molesting children, has the further effect of scaring off any of the community support of which transgendered defendants are often so sorely in need."

While it would be wrong to uncritically assume every queer accused of child molesting is innocent, we must not forget that charges of "pedophile" and "protect our kids," have historically been the cry of a vengeful and hysterical heterosexism when confronted with homosexuality. And just as the prosecution may hope, such charges often had the effect of tossing a live grenade into a crowd: scaring everyone and anyone out of their wits and far, far away.

And now, as we see such cases brought against genderqueers, rather than closing our eyes ought we not instead open them wide, if not in wonder, then at least in suspicion, at this recent resuscitation of that most hardly, reliable and ubiquitous of villains: the "predatory child-molester," raised once again, Lazarus-like from the grave to trouble and criminalize the lives of yet another population of social deviants.

Closing note: This week, In Your Face received word that last month a wife in the Midwest charged her transexual spouse, who just recently began taking estrogen and living fulltime as a woman, with molesting their children. Due to delicate negotiations underway and the severity of the charges, those close to the case have requested we not disclose her identity at this time. However, she was taken into custody by police, and, as of this writing, is being held on $100,000 bail. Unable to afford legal representation, a Public Defender has been appointed to defend her. Members of two Menace chapters in the area have sought to support her, only to face charges of aiding a child molester.

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