When Self Defense Doesn’t Count

A 16-year-old girl has been sentenced to 2 to 2 1/2 years in a juvenile detention center for the manslaughter of a 49-year-old man. This sounds like nothing special until you start to look at the details:

Seated between her attorneys in juvenile court, the diminutive 16-year-old shook her head no Tuesday when asked if she had anything to say before being sentenced for her crime: manslaughter, for killing a 49-year-old man who’d hired her for sex.

The blonde teenager, her hair pulled into a tight ponytail, sat silently through the hourlong hearing, appearing distracted as she glanced around the courtroom. But her path to that point has been anything but quiet.

Tuesday’s proceeding in King County Juvenile Court culminated the girl’s lengthy trip through the legal system, a journey that spans at least three years and involved charges ranging from auto theft to assault to prostitution before prosecutors charged her in the death of Francisco “Noe” Pena last April. In what his ex-wife described as “just one mistake” in an otherwise good life, the recently divorced father of two picked the girl up at a supermarket in Burien and, after buying a bottle of vodka and Crown Royal, brought her back to his home for “a date.”

Though exactly what happened the evening of April 5 remains a mystery, court documents and the girl’s statements indicate that the two drank, then fought over whether she would be allowed to leave Pena’s house. He wouldn’t let her go until they’d had sex, the girl told police, so she stabbed him in the chest with a steak knife.

This story has not been widely reported, but every article I found describes the accusation against Pena as refusing to let the girl leave the house unless she had sex with him.  But, you know, we have a phrase for that.  Attempted rape.  Since Pena’s accused actions involve keeping the girl prisoner in the house, that would also likely fall under the crime of kidnapping.

Of course, we don’t know for certain that Pena is guilty of kidnapping and attempted rape.  What we do know is that he broke the law by supplying alcohol to a minor.  If the 16-year-old girl was 15 in April when the incident occurred, hiring the girl for “sex” would also mean that he had intent to commit rape of a child in the third degree.  If the girl was already 16 in April, his actions still fall under the intent to commit sexual misconduct with a minor in the second degree.  Oh, and commercial sex abuse of a minor — a felony.

So let me be even more explicit: even if Pena is not guilty of kidnapping and attempting to rape her consistent with the definition of rape against an adult as opposed to a child, no one seems to deny that he had intent to sexually abuse her.

It would seem to me that in most cases, if a 49-year-old man intended to sexually abuse a 16-year-old girl and she stabbed him, the cries of “self defense” would be deafening.  Under most circumstances, if a 16-year-old girl was sent to jail for 2 to 2 1/2 years because of stabbing a man who attempted to sexually abuse her, there would be public outrage.

So why silence now?  Is it not self defense when you’re working as a prostitute?  Are we back to the legal system’s “prostitutes can’t be raped” theory?  Does this dehumanizing, misogynistic and rape apologist myth now apply to children, as well?

Even worse, the prosecution openly admits that the girl’s claims of kidnapping and attempted rape are credible:

The plea, which the girl entered Thursday in King County Juvenile Court, came after a mental-health evaluation, attorney negotiations and a months-long delay in the decision on whether to prosecute the teen as a juvenile or adult.

Prosecutors say emerging information about what could have happened — including the possibility that the victim had attacked or threatened the girl — factored into the decision for the juvenile plea deal.

“This wasn’t a classic murder case,” said King County Prosecuting Attorney Dan Satterberg. “There were equities on her side — the victim may have contributed. This seemed to be a spontaneous act, done in a situation where she was not the one in power.

“This will get her the rehabilitation she needs,” he said.

I can’t claim to be particularly familiar with Washington’s juvenile detention system, but we should all know that in the vast majority of cases, like with adult prison, juvenile detention is not rehabilitative and kids usually come out more messed up than they went in.  If prosecutors, as they claim, actually do want to help this girl, the answer is not locking her up with other troubled kids.  The answer isn’t giving someone who clearly has difficulty interacting with the world in a way that serves her own best interest two less years of time learning to negotiate life safely and productively before being thrown out on her own as an adult.  This is a ridiculous and offensive cop-out.

The question here is not whether or not the girl needs help; she clearly does.  The question is whether or not she is guilty of the crime of which she has been accused.  The question is whether or not it’s actually in her best interest to be told that she deserves to be punished for protecting herself against a man who is just one in a long string of people who have attempted to harm her.

In fact, according to the Seattle Post-Intelligencer article, it looks amazingly like the girl got even more screwed over by the system than it already appears.

Attorneys on both sides of the case acknowledged that the girl’s alcohol consumption the night Pena was killed might have led to an acquittal at trial. Cromwell said her client could not recall the incident, her memory lost to the liquor-fueled haze of the evening.

The girl claimed the killing was an act of self defense.  The man she killed seemingly without a doubt had intent to sexually harm her.  The prosecution accepts that the girl’s story is credible.  And both the defense and prosecution admit that if the case had been allowed to go to trial, she would have likely been acquitted.  But what did they do?  Did they decide to correct the failures of the system up to this point by dropping the charges and helping her find the services and support system she needs to get her life on track?

No.  They let her plead guilty.  They let her be sentenced to imprisonment.  And then they let the man’s wife wail in open court about what a victim her piece of shit husband is.

This all screams of yet again shaming, punishing, and smearing the nature of women who do sex work while excusing, defending, and even praising the men who pay for their services.  Even when those women are just children or otherwise non-consenting.  This 49-year-old man, who had intent to sexually abuse a minor and possibly kidnapped and attempted to forcibly rape her, is a victim who made “just one mistake” his whole life and doesn’t deserve to be judged for it.  The 16-year-old girl who has led a difficult life of abuse and suffered from post-traumatic stress disorder and drug addiction while being paid by adult men so that they could sexually abuse her is a slutty, stupid little thing who doesn’t know what she’s done, and whose sentence is an “insult” to one of those abusive men.

This is how we let our society treat its most vulnerable women and girls. And it’s absolutely shameful.

Cross-posted at Feministe.  Thanks to Akeeyu for the link.

0 thoughts on “When Self Defense Doesn’t Count

  1. SunlessNick

    Attorneys on both sides of the case acknowledged that the girl’s alcohol consumption the night Pena was killed might have led to an acquittal at trial.

    And the defence didn’t want to risk their client being acquitted? I guess there was too much risk of acknowledgment that she was a person rather than something like a vending machine.

  2. lauredhel

    She has been charged with prostitution somewhere between the ages of 12 and 15, possibly more than once?

    And just how many of her rapists have been charged with rape, then?

  3. ouyangdan

    And just how many of her rapists have been charged with rape, then?

    That’s what I want to know. It’s always the dirty slutty women who are to blame…oh wait, except she was a young girl then.

    This makes me about eleven kinds of angry.

  4. Ryan

    I’m not sure her defense was negligent. Yeah, she might have been aquitted. She also might have not been aquitted, tried as an adult, and put away for 10 years. That would not be right but that does not change the fact that a sentence that severe was possible.

  5. Thealogian

    I actually advocate on behalf of State Agency Children (which in my state means children that are in custody of the state and not in traditional fostercase, therefore, children in Detention Centers, Mental Health Treatment Centers, and of course Children’s Homes, which generally treat/educate the most abused children in our State). Now, I’m not going to say where this is since I do work closely with State Agencies, legislators, etc., but I will say that in my State (which is not common) we have really good services for the children who enter our programs–therapy, special education services (most SAC come into our programs three grade levels behind), healthcare, and service opportunities that really help our kids change they way they see themselves (we’ve found that service work can often help even the most damaged child feel like he/she can be a force of good, rather than “good for nothing” which is what they’re so used to hearing). Anyway, I’m not speaking for Washington State, here, so I don’t know. But, if she were in my state–though I agree that this OBVIOUSLY WAS A CASE OF SELF DEFENSE, perhaps she might be better off for a while in a program that will help her get out of whatever family situation she’s been in that has resulted in her working as a sex worker.

    Though, of course, that’s a sad kind of logic on my behalf because somehow one is supposed to think that out of this obvious INJUSTICE something good COULD possible come about. Shouldn’t she be able to get these mental health and educational services just because she needs them? Rather then have to go to a detention facility for them (if they’re even available where she is?).

    All around, this is an awful case and another example in media criticism in which reality (Rape, kidnapping) are glossed over with terms like (have sex with, wouldn’t let her out of his house, etc). An adult CANNOT HAVE SEX WITH A MINOR, HE ALWAYS RAPES A MINOR. Use the terms, face the problems.

  6. Emily

    I really don’t like the push to always use the word rape when dealing with underage victims, even in cases of pseudo-consent. I feel it downplays the impact of sexual violence to conflate them. Taking advantage of a child’s willingness to please and violently assaulting a child are both criminal acts, but not the same act.

    Really, we need a different word, or a way to make statutory-rape into a verb. I’d settle for “an adult always sexually abuses a minor” since that’s more generic.

    I am surprised at the skirting around the use of the terms kidnapping/wrongful imprisonment, though. That seems pretty straightforward.

  7. Cara Post author

    And Emily, I feel that using terms like “taking advantage of” is what really downplays the impact of sexual violence.

    As someone who has been raped — in the sense of was able to consent but did not, as opposed to unable to consent — I think that rape is also precisely the right word to use for a case where someone is unable to consent. I personally feel that statutory rape falls under the principle of coercion, and coerced consent is never truly consent. Therefore what we’re talking about is rape.

  8. Thealogian

    Rape is rape is rape, agreed. Legally, and morally, a child CANNOT CONSENT TO SEX WITH AN ADULT and sex with an adult is always WITHOUT LEGAL CONSENT therefore Rape.

    Yes, rape can be a continuum. Someone who drugs a woman/girl and rapes them while unconscious is raping them, though perhaps that rape might not result in bruises or tearing a rape victim who was able to try to fight off her attacker who was conscious might experience. But would you parse terms in those circumstances? Hopefully, not Emily.

    The whole “violent rape” thing–you know, that hypothetical that that creepy guy in North Dakota brought up (a virgin, good Christian girl who was saving herself, brutally raped by a stranger…probably a minority in his twisted imagination…and impregnated…she, he postulated “deserved” to have an abortion, but all the other hussy’s on the planet need to have their punishments, um, babies, um choose life.) The fact that there are deserving rape victims, those that not only deserve abortion services, but sympathy, and victims like this CHILD who happened to have been raped for money in sex work (was a whore in the language of the patriarchy), doesn’t even deserve the dignity of having the crimes perpetuated against her used in their legal context.

    I call bullshit.

    The fact that the majority of rapes are acquaintance rapes is significant and its under exposed as such in the media. If your rape doesn’t add up to the relatively rare, Virgin/Stranger” dichotomy, it isn’t “rape.”

    Again, bullshit.

    Minors can’t consent, rape is lack of consent, rape is rape is rape. We all need to use the proper language in our attempts to systematically expose rape culture.

  9. Sativa

    Not to mention, Emily, the circumstances of the rape are usually taken into account at the sentencing — so, if it was “particularly brutal” (a horrible term, I know, because what rape isn’t brutal?) the sentence will be particularly long. Hence, there’s no reason for trying to say it’s not rape when it is; the legal system, though flawed, already has a mechanism for taking into account different circumstances.

  10. Graphictruth

    I just blogged pointers to this. Frankly, if this is really the “best way” to get services to this girl, then something is deeply wrong.

    If she needs mental health services – get them for her. If she needs detox – get them for her.

    If she needs a safe home – make it so.

    If the “best interests of the child” involve sending her to prison with a completely invalid guilty plea (not even a nolo!!!), this has social repercussions that transcend even her own grave interests. This is a shameful, shameful outcome.

    If this is due – as I suspect – to the depletion of social supports in collision with the moralistic “get tough on crime” committed by people in NEED of social supports – then this outcome is … and I use this in the very conscious moral sense … an abomination.

    I suggest that every elected official involved in this outcome be targeted immediately and forever.

  11. Pingback: The Volokh Conspiracy

  12. neil

    she would have been justified in using lethal self defense against attempted rape or kidnapping.

    some of the commentators and the OP seem to be intimating the she would have been justified in using lethal self defense against a statutory crime, such as statutory rape, or sexual exploitation of a minor. these are crimes because the minor is considered to lack capacity to the consent. I disagree.

    just because the victim acted reprehensibly does not mean she had a right to kill him outside of the narrow circumstances of legal self defense.

    in this case the accused doesn’t remember what happened. someone has been killed by her hand. the state has a right to make her stand trial to determine whether or not it was in self-defense. it may or may not have been in self-defense. she got a pretty generous plea bargain here, which likely reflected her age, ethnicity, doubt about the events in question, and likelihood of prevailing at trial.

  13. neil

    i’d add that were it more clear from the evidence in these news accounts that it was self-defense, i would say the prosecutor should have declined to prosecute the case.

    i’ll also give a few reasons e.g. statutory rape (standing alone) should not give rise to a right of lethal self defense.
    -withdrawal of consent converts the crime to a crime where lethal self defense is warranted, and gives the perpetrator a chance to desist before being killed
    -it would give rise to ambiguous situations involving killings in consensual relationships between minors and adults that might be actual murders
    -the right to lethal self defense should be narrowly restricted to situations where it is a last resort against serious harm, and is not meant to extend to self-help situations, however emotionally satisfying that might be

  14. Cara Post author

    some of the commentators and the OP seem to be intimating the she would have been justified in using lethal self defense against a statutory crime, such as statutory rape, or sexual exploitation of a minor. these are crimes because the minor is considered to lack capacity to the consent. I disagree.

    If you don’t have the capacity to consent, it means that you did not consent to any particular sexual contact had, and therefore that contact is assault. That’s why we call it rape — because it’s sex without consent. Sex without consent is rape. This is very simple and the only reasoning that makes any sense otherwise is if you disagree with the concept of the statutory rape law entirely.

  15. neil

    Cara said —–If you don’t have the capacity to consent, it means that you did not consent to any particular sexual contact had, and therefore that contact is assault. That’s why we call it rape — because it’s sex without consent. Sex without consent is rape. This is very simple and the only reasoning that makes any sense otherwise is if you disagree with the concept of the statutory rape law entirely.—–

    i think that rape and statutory rape are not morally equivalent. rape generally carries higher penalties. rape is a crime of violence, statutory rape is generally not. in some jurisdictions, you can commit statutory rape as a crime of omission, by not knowing the age of your partner. normal rape is never a crime of omission.

    what constitutes statutory rape differs widely across jurisdictions even within this country. rape is more straightforwardly defined. as a matter of morality, is the fact that something is illegal on one side of a river and legal on the other have much bearing?

    statutory rape paints with a broad brush, lack of capacity to consent is a legal fiction. it is not necessarily the case that all sixteen year olds lack capacity to consent to sexual intercourse with a nineteen or twenty year old, the law makes a policy judgment that they shall be deemed to lack such capacity.

    i think this is a permissible determination for legislatures to make, but i do not think it
    makes all statutory rapes equivalent to traditional rapes. i think the two consents under discussion should not be conflated.

  16. Cara Post author

    Consent is consent is consent, Neil. You have yet to explain why not obtaining consent in one case is worse than not obtaining consent in another case unless the definition of consent changes. Why does consent mean more in some cases than others?

  17. neil

    well i dont think consent is consent. consent is generally taken to mean saying yes and allowing the activity to happen, and taking part. when this is not present, when one of the participants says no and tries to stop the activity from happening, and the other party forces it, a rape has occurred. literal, traditional consent is absent. a terrible crime of violence has occurred.

    in statutory rape, the activity happens, is allowed to happen, is condoned, is participated in. traditional literal consent is present. however, the legislature has made a judgment that because of the age of one of the parties that consent is void as a defense to statutory rape. the older party is subject to legal discipline. however the sexual encounter could have been significantly different than a rape. it could have been a twenty year old and a sixteen year old who knew each other well and knowingly and unreservedly participated.

    in the statutory rape scenario literal consent was present, but was void for purposes of the statutory rape law. it is clear that there are two type of consent here because if literal consent was absent, they would be prosecuted for rape (though a statutory rape charge could be tacked on). if literal consent was present, the crime is a different (and less serious) one.

    if every statutory rape was treated as morally and legally equivalent to a Rape, the results would be absurd. statutory rapes would often be punished more harshly because the victim was a child (for purposes of law), even though literal consent was present and there was no violence, and even if the participants were close in age.

    to make a long story short though, if there was only one kind of consent there would be no need for a distinction between rape and statutory rape.

  18. Cara Post author

    Whoa whoa whoa. You have a twisted and disturbing concept of consent. “Allowing” the activity to happen is not the same as consent. And “trying to stop” it is not necessary for non-consent.

    I said no a bunch of times. Then I was afraid, and I gave up. But I did not consent. And I was raped. A woman who does in fact not say no at all has not necessarily consented. The answer is not “yes” until shown otherwise — quite the opposite. Consent does not exist until it is given. Women (and all people) are not in a permanent state of consent. Consent means giving permission, not sitting still.

  19. neil

    you distorted what i said

    i said “consent is generally taken to mean saying yes and allowing the activity to happen, and taking part”
    and then
    “when this is not present, when one of the participants says no and tries to stop the activity from happening, and the other party forces it, a rape has occurred.”

    my definition included giving permission, not just sitting still.
    -saying yes, allowing it to happen (not trying to stop it after saying yes), and taking part

    i think that is fair if not perfect. in the second half just saying no would be enough to establish rape. the scenario i describe in the second half was not meant to be the absolute minimum scenario that would establish rape, but rather a clear example of a scenario in which forcible rape had occurred.

    why don’t you tell me why you think there should be no moral or legal distinction between forcible rape and (otherwise consensual) statutory rape between two consenting adolescents close in age?

  20. Cara Post author

    Well I’m glad to hear that.

    I believe that two adolescents close in age can consent in some cases. There is a big difference between adolescent and adult. And generally, the law allows for this. I think that there are, in some places, broken laws where it’s deemed that a 16-year-old cannot consent with an 18-year-old and I disagree with the law in those cases. I personally think that the law should be more nuanced. Others may disagree with me and say that since there is such nuance that the cutoff age should in fact be 18 all together, since that is the legal age of adulthood. I do think that in any case, the legal adult is the one who had the responsibility to follow the law, and that they must as a result live with the consequences of breaking it. But we’re talking about a case here of a 15 or 16 year old girl and a 49-year-old man.

  21. pete the elder

    Let me try to resubmit this comment since I do not think it went through earlier. You should read this story, which casts some serious doubt on the self defense claim:


    She never contacted the police about the killing, who did not find out about it until three days later even though she had talked to the police a few minutes after the killing. She admits to coming back to the scene before the police found about it and took his laptop and other evidence and probably took his wallet as well. Does not mean she did not act in self defense, but it also looks like she might have been looking to rob him all along or at best decided to take his stuff after she had killed him. It is easy to see how the prosecuters doubted her story after she admitted to taking his laptop and the related actions.

  22. Jenn

    Another drop in the bucket of reasons why I’m afraid I’m going to really really hate being a lawyer when I’m done with school.

    Seriously though, how the hell does one prosecute or convict a minor of prostitution? I mean, prostitution is consensual. Rape is not. Having sex with a minor is rape. Apparently if you pay the minor, it’s magically not rape anymore. Just like if you pay the family, the murder victim magically comes back to life as the murder is undone.

    And these people have allowed years of legal training to be swept aside by their sick social convictions. If you’re not going to use the actual law to practice, please stay far far away from the justice system. Thanks.


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