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

June 13, 2013

[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.

13 Comments leave one →
  1. June 13, 2013 9:26 pm

    Reblogged this on jezebelxdoll.

  2. June 13, 2013 10:37 pm

    You sound like you know your shit, maybe you can help me evaluate something I heard elsewhere (comment on Metafilter? I don’t remember) about the situation.

    Some commenter or something insisted that the “nighttime theft” thing was not important to the verdict, it was a desperate defense such as defense attorneys are required to make because you’re supposed to try everything to get your client off, even stupid things. What was important was the fact that the jury was given a charge of murder to try, and the defense argued (apparently successfully) that the intent of shooting wasn’t to kill, but to stop the car or something like that — something which would totally justify a manslaughter verdict, but didn’t rise to the level of murder, and they didn’t have the option of convicting him of anything less than murder.

    Is that explanation at all credible?

    Thanks in advance for any light you can shed on that.

  3. June 13, 2013 10:38 pm

    Whup, never mind. Just read the Tits & Sass post, and it answered my question.

    “The jury heard testimony that Gilbert shot directly at Frago with an AK-47 but that he didn’t intend to kill her. His claim is as moot as it is unbelievable, as the statute states that an act that is clearly dangerous to human life without the intention of death falls under the umbrella of murder.”

  4. June 14, 2013 1:33 pm

    I’m obviously not going to say that shooting somebody over $150 is a proportionate response. However, there are some differences between the bartender and the sex worker hypothetical.

    The first difference is that providing and soliciting sex work is in most places illegal. I’m not sure it is in that location, but I’m going to go on a limb and assume that the guy was breaking the law by hiring a prostitute and that she was breaking the law by hiring herself as a prostitute.

    If I hire you as a lawyer and you stop working and refuse to refund my retainer, part of the reason why I trust the arbitration process is because I know that there are institutions which will enforce the arbitration’s outcome. If I win my retainer and you don’t pay me, there are institutions which will if necessary use violence to give me what was mine.

    However, when you are trafficking in illegal services, that is not an option. No court will return him his $150, even if he is entitled to it according to the agreement he made with the service provider. Since he cannot invoke violence mediated through the state in order to get his due, his only option is to resort to private violence. (or just give up) Obviously, killing somebody over $150 is excessive, but your bartender analogy is flawed.

    Of course, none of that matters if she was entitled to leaving without refunding the fee for some reason. Either way, we would be better off if prostitution could be conducted above board and those involved in that trade had access to the normal more peaceful dispute resolution mechanisms which society provides to others.

    I recall reading that story somewhere else. My understanding was that she left on the pretense of having forgotten something in her car and then started to drive away. (I’ll be happy to be corrected, if I was wrong) Again, there may be a valid reason for her doing so, but that also diverges significantly from the bartender-throws-you-out-because-you-re-a-jerk analogy.

    • Wordy Librarian permalink
      October 27, 2013 7:20 pm

      Did you read the whole article or just the analogy? I can’t help but be completely sure you only read the analogy itself, because the author very clearly wrote about the lack of legal recourse and the role it played. In fact, that seemed like, you know, a major point of the article.

      As for how the victim left and why, that’s just the problem. She was murdered. She can never defend her actions or her reasons again. Whether the “pretext” was getting something out of her car or not is not relevant without knowing the context. If you decide not to offer a service to someone because they appear to be violent, using whatever pretext is necessary to get out of the situation safely is perfectly reasonable. We don’t know if she seductively whispered she’d be right back and then got in her car cackling about what a sucker he was OR if she stammered at him, convinced she was within a hairsbreadth of being beaten bloody, that she’d be right back to do anything he said and then flung herself in her car, trying to hold it together long enough to flee to safety. Given that his response to feeling he was being cheated was to fire an automatic weapon at an occupied car, I’m inclined to believe she had reason to be concerned about whatever behavior he was displaying. However, without being able to know for sure, it really isn’t relevant either way.

      What is not reasonable, ever, is shooting up an occupied car with an automatic weapon over some cash. That means the shooter is making the call of whether his money is worth more than the possibility of KILLING another human being, whether “accidentally” or not. Regardless of the amount of money involved, our society and our law says that is not his call to make. Frowning on vigilante justice, and all that.

      If you change the bartender in the example to a drug dealer, and the drink is a bag of meth, what do you think the verdict would have been? All the same concrete, factual events. But now the shooter is seen as a dirty drug user, probably prone to violence. The dealer is still seen as scum, but you don’t get to go shooting automatic weapons at occupied cars just because your illegal activities don’t go your way.

      Still think it’s ONLY the lack of legal recourse that’s the problem, and not some deeply ingrained prejudices?

      I would agree that having legal recourse for settling disputes is hugely necessary. However, I think that ignoring the HUGE role of misogyny and racism in a case like this is a grievous mistake that requires a great deal of deliberate blindness.

  5. donna permalink
    June 17, 2013 11:11 pm

    While i completely get the point about legalization of sex work, i agree about the root of the problem being misogyny. Of course any law that can help, should be passed, but unfortunately i agree with you that the law is not about the words, but about how those in power use the words. Many of the women, including myself, who have posted on this blog about being raped were not raped in the context of sex work, and yet even STILL the law was used against us, or not applied to our cases. The same is true for assaults on women. It is not long ago that the laws sanctioned rape in marriage, which is an institution thought of as perhaps the very opposite of sex work — it’s so-called “respectable.” I in no way want to minimize the dangers that sex workers face, or the horrific murder of Ms. Frago. Women are both forced into being sexual objects and then hated for that perceived role. It makes me think that not only should we legalize and unionize sex work, but that all women should be paid for all sex from all males, so long as we live in a world where the consequences and risks of being around all males are so high. Andrea Dworkin said that we have to stop having individual negotiations with men, and have collective bargaining. On behalf of Ms. Frago and all women, who ALL are treated as sex workers at some time in our lives, UNION.

  6. Thkk permalink
    August 4, 2013 9:27 am

    Its very sad that justice aint blind and for the queers of the world it sure aint just!!!

  7. June 27, 2014 9:25 am

    Whup, never mind. Just read the Tits & Sass post, and it answered my question.Its very sad that justice aint blind and for the queers of the world it sure aint just!!!


  1. Misogyny and whorephobia: sanctioned by law (Texas, US law, at least) | Her Hands, My Hands
  2. Friday the Thirteenth Again | Her Hands, My Hands
  3. Taking Statutory Rape Seriously | The Order of the White Feather

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