Man Refused Service, Kills Service Provider: A Meditation On Law As A System of Power

[CONTENT NOTE:  I’m talking about a guy in Bexar (pronounced Be-har) County, Texas, who shot and killed a sex worker.  The description of the shooting is limited, but I will give a graphic description of manifest injustice arising from mysogyny and whorephobia, and that’s triggering for a lot of folks. ]

What I’ll start with is what didn’t happen, understanding that what did happen isn’t my story to tell.  The person whose story it is, though, is dead.  Here’s what didn’t happen.

A man in Bexar County, Texas walked into a bar.  His name was Ezekiel Gilbert.  He’s thickly built.  He’s white.  Zeke ordered a beer and a shot and put money on the bar.  I’ll call the bartender Lenny.  Lenny picked up the money, poured the beer and the shot, and went to the register.  While at the register, Zeke and another person in the bar began arguing.  Lenny called over the bouncer, who ejected Zeke, who was shouting that Lenny owed him a refund.  He then walked back into the bar, shot Lenny in the neck and retrieved money from the cash register.

That’s not what happened.  What did happen is that Ezekiel Gilbert shot Lenora.  He shot Lenora Ivie Frago in the neck, several times as he sprayed the car she was in with an AK-47.  She lingered for months in the hospital before dying of her wounds.  There are not a lot of pictures of her on the web, but the Dallas Observer ran one, here.  The story says she was 23.  These are statistics: name, age. 

I’m sure there was a lot more to Lenora Frago as a person: a favorite color and a favorite food and a favorite song, people she loved and who loved her.  I know very little about her, and maybe that’s what she’d prefer.  Maybe she would want everyone to tell her stories, or maybe she was a very private person.  But she can’t tell us.  That was taken from her.  Anyway, talking about who she was as a person is not something I can do better than other people.  Sex work is an area where the problem of people talking-for and talking-about without hearing from the people they are talking about is pretty rampant, and so my real contribution here is very limited, and dry, and theoretical.  I’ll recommend a different  and more complete post for the reading that isn’t primarily theoretical, Charlotte Shane’s at Tits and Sass, which contextualizes the murder of Frago with the reign of terror by the founder of The Erotic Review, who ultimately tried to arrange the murder of a sex worker that he perceived to have slighted him.   

Law, In Theory And Practice

I didn’t know Lenora Frago and I can’t tell you anything about her that other people have not or will not say better.  What I can say that, if I don’t, others might not, is something about law and why Zeke Gilbert is a free man though he fired an assault rifle into a car and killed a woman.

I want to add here that there is another, non-theoretical, accessible and well-written legal analysis just published at Tits & Sass by attorney Bella Mansfield.  I basically agree with what she says, and what I wrote is more an effort to connect the strains of theory with the tragedy and travesty that is Frago’s death and Gilbert’s acquittal.  Readers who don’t care about theory may find Mansfield’s a more satisfying read.

Most law students get some sort of speech from a professor ealy on about how some non-lawyers think that law is like a bunch of speed limits, and you just have to know which one to look up and where to find it.  And that that way of looking at it is wrong.  Integrating that knowledge is critical to dealing with social justice.  It’s impossible to understand the real world — justice, and injustice — by viewing law as some apolitical, objective thing: words in a book executed by robots.

I sometimes dip a toe into theory though I admit I’m not a real theory maven.  The area where I’m best read on theory isn’t gender theory, it’s legal theory — though even there, my familiarity is between “passing” and “working” and in no way deep. But much of the development of critical legal studies has applied certain Continental thinking, post-structuralist thinking like Foucault and Derrida, to law.  That thinking tells us that law isn’t a bunch of rules applied by robots, but a living, protean system of power.  What it means is contested: it is contested using the power to define things, by people with interests in how they are defined.  What the words say and what they mean don’t have a concrete relationship to each other.  The relationship between words and meaning is, itself, the battleground.

Okay, that’s theory.  Now, back to the analogy.  If Zeke walked into the bar and shot Lenny the bartender, he would be in prison.  In Texas, protecting property from a “nighttime theft” is an acceptable reason to shoot someone.  But it’s up to the judge to determine under what factual circumstances that defense applies, and up to the “trier of fact” to determine whether those facts are present.  That’s a bunch of legalese.  He’re what happens in practice:  the judge spends hours, sometimes more than a day in complex cases, giving the jury instructions.  Those instructions are basically definitions.  Then the jury is supposed to decide what the facts are and apply the facts to the law as it has been explained to them.  (In most criminal cases, the trier of fact is a jury, but in some circumstances, it’s a judge — that’s called a “bench trial” and it’s what happened in the Steubenville rape case because that was a juvenile matter.)

What actually happened in Bexar County was that Zeke Gilbert made arrangements to Frago, who advertised as an escort who advertised on Craigslist.  He paid her $150.  For some reason, she declined to have sex with him.  I’ve read various things about why, and I can’t really form a firm opinion of why.  If she were alive, she could tell up.  But she isn’t, so she can’t.  She also declined to offer a refund.  He then shot her. 

His defense was that refusing him service and refusing him a refund was a “nighttime theft.”  That he raised that defense isn’t surprising, because someone in serious trouble will grasp for any excuse.  In Steubenville, the defense was basically that by getting drunk with those guys, the victim was consenting to anything they thought up.  Well, that’s the defense, but that was ridiculous, and was resoundingly rejected.  I don’t think I need to add any facts for people who read here to understand that this is bullshit and should be rejected out-of-hand.  (Mansfield, linked above, explains at greater length how much nonsense this is.)  But I’ll add one anyway, because what goes without saying sometimes ought to be said anyway.  The defense was bullshit in the “that wasn’t my real reason but I thought of it later to get out of trouble” kind.  When interviewed by the police, Gilbert didn’t exercise his right to remain silent.  He ran his big mouth.  And he did not say that he shot Frago to recover his money.  That defense was a later invention.  For that reason alone the jury should have rejected it.

They didn’t.  The jury bought it.  This goes in the annals of terrible, egregious injustices in jury trials.  It goes right alongside every “gay panic” and “trans panic” defense, and alongside the long history in the US of convicting black men of sexual assault on basically no or transparently fabricated evidence.  Juries are a part of the criminal justice system in the US and some other countries, for both better and worse, and they bring to the table the prejudices of the people that serve on them.  One thing juries bring with them is a terrible bias against sex workers.  I also can’t ignore that Gilbert is a white gun-owning man in Texas, and Frago appears to have been a woman of color.  These things are not separable from each other; juries mush it all together and consider it all at once.  The the intersection of “sex worker” and “woman of color” are not just something that happens on a chalk board in women’s studies class.  They intersect at the point where twelve people decide whether she gets vindicated for the taking of her life or not.

I want to say that there are a lot of things I don’t know.  I have not read the trial transcript and I don’t know why the victim refused service.  Every business has the right to refuse service to patrons for a variety of reasons.  Bars 86 people, restaurants ask people to leave, masseurs and lawyers stop working for clients.  The thing is, when that happens, the matter of how they settle up the remaining financial affairs is not a matter of violence.  It’s a matter, usually, of contract law.  It’s just a dispute over money, and it really, really isn’t an issue of theft.  If I tell a client, “I’m not doing any more work for you, and I’m not giving the rest of the retainer back,” if he thinks I’m wrong, his options are fee arbitration or civil suit.  Not shooting me. 

Sex workers need to be able to refuse to perform services, too — bodily autonomy and the Thirteenth Amendment forbid requiring service; the very idea of what lawyers call “specific performance” is, applied to sex work, an abomination.  When they do, the question is simply one of refund.  Did Frago take his money intending to provide sexual services, and then leave because he was an egregious asshole or made her unsafe?  I don’t know.  More than one friend who does sex work has told me that in such an instance, no refund is owed.  But there are no fee arbitrations for sex workers, which puts them at risk, and I’ll return to that below.

(I’m talking theory here.  The real reason Gilbert shot Frago, when corporate America rips consumers off all the time and consumers rarely kill retail clerks and customer service people, is a toxic sludge of thwarted entitlement, misogyny, classism and racism, sometimes transphobia, etc. that adds up to the perception, in the minds of some violent men, that the object of their anger isn’t human.  See, generally, Shane’s post linked above.)

There’s another thing I don’t know.  I don’t know how much of this is the judge’s fault.  The judge has an enormous amount of influence on a jury, and the way the instructions read are critical.  When the judge says how the law applies to the facts, that doesn’t force the jury to see it that way or ignore their life experiences, but it is the most important thing they hear about what the rules are.  If the judge’s charge left the jury feeling like they didn’t have a lot of options, then it’s partly the judge’s fault.  (Some folks will say that judges are very hemmed in on charging language, especially on criminal case defenses, and I’m just going to say that that debate is too fine-grained and inside-baseball to have here.  That’s an argument for a pure crim law blog, which this isn’t.)

To zoom back out:  what the law says is a matter of words.  What the law means is a matter of power, or as one old radical friend puts it, “exercises of power and excuses therefor.”  The system isn’t a computer.  The system is people, making decisions that express their (and more broadly their culture’s) values.  If a guy shot a bartender to get a refund on a drink after getting tossed from the bar, the “nighttime theft” defense would seem ludicrous.  It didn’t seem ludicrous to make exactly the same argument in defense of shooting an escort, and the reason is because in practice, the machinery of law will be used to protect bartenders and will not be used to protect sex workers.

A System Of Dispute Resolution

To the extent that law is something other than a system for the raw exercise of power, it is a system for resolving diputes.  I’ll end by circling back to fee arbitrations for sex workers.   It sounds kind of amusing, right, at least to folks who don’t regularly engage on sex work issues?  Go ahead, snicker.  Okay?  Got it out of your system? 

Okay.  The thing about full decriminalization is that every other answer doesn’t work.  Here’s one reason why.  When we criminalize a transaction, we force all disputes around that transaction, and other things like money used in the transaction, into the shadows.  When we decide that sex work is illegal, we don’t stop it, we just put it in the underground economy, where if the deal goes bad, if someone cheats someone, there is no recourse to the established system of dispute resolution. 

That’s not to say that legal processes of dispute resolution are great for consumers in the formal economy; in many instances they are incomplete and leave customers at the mercy of big business.  But there’s a lot of safety valve in having legal recourse.  If we declare that problems between sex workers and clients can’t be resolved by civilized means, we’re telling the clients (who I’m not inclined to think highly of) that their options are the nasty ones:  threats, force, blackmail, fraud and the like.  Some folks keep looking for some sort of half-measure short of decriminalization, but such measures don’t solve this problem.  Anyone who wants to keep sex work in the underground economy needs to solve the problem of how disputes are resolved.  They are better solved by cops than by private violence, better by civil suits than by cops, and perhaps better by an arbitrator than a civil suit.  I don’t see a policy other than decriminalization that does this.

Thanks to Lori Adorable for excellent feedback, and remarkable patience with my crappy draft.