Last week, social media flooded with outrage over the acquittal of Ezekiel Gilbert for the murder of Lenora Ivie Frago. On December 24, 2009, Gilbert and Frago met via Craigslist and agreed that he would pay her $150 for her time as a companion. Time, Gilbert argued, that was supposed to include sex. Frago left without having sex with him, fee in hand. Gilbert then decided that her fee was now stolen goods and shot her to reclaim his property. Frago later died due to her injuries and Gilbert was charged with murder. A Bexar County jury acquitted him, leading the sex worker community and people with general good sense to ask: how in the hell did this happen?
Jury trials are, in theory, supposed to be fairer than bench trials as they are decided by a panel of people who bring a variety of life experiences and thoughts to the table. Both sides of have the chance to weed out a few jurors who they think have too much bias during jury selection, but there is simply no way to weed out all jurors with bias. There is also no way to ensure jurors are actually listening to testimony or understand the law. I’ve seen trials where jurors literally fell asleep and then went off to a small room to decide the fate of another human being.
In this case, prosecutors needed to convince these twelve people that Gilbert had committed the act of murder according to the state’s definition. If the facts did show that Gilbert committed murder, there was still a way to find him not guilty: his attorneys could show that he had a plausible affirmative defense. An affirmative defense is a defense that argues the defendant’s actions may meet the elements of the crime, but his actions had good (and legal) reason behind them.
Texas defines murder as when a person “intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual….” 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. On its face, it would appear the state had a slam dunk case.
Here’s where the affirmative defense comes in. Gilbert’s attorneys never denied that he shot Frago or that the bullets he put into her were the cause of her injuries and death. Instead, they argued that he did it under the protection of Section 9.42 of the Texas Penal Code:
DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
You don’t have to be an attorney to notice that this law is overly broad. One person’s interpretation of what reasonably merits the use of deadly force will vary greatly from another’s. The biggest issue with the use of this affirmative defense is it just doesn’t apply. It requires a “theft during the nighttime” to have occurred. Using the facts we have from the copious articles from this case, it seems clear that there was no theft, and thus this law should have never even entered the picture.
In Texas, theft is when a person unlawfully appropriates property with the intent to deprive of the owner of their property. Appropriation is unlawful if it is without the owner’s effective consent. Gilbert hired Frago off of Craigslist for compensated companionship at his home. Frago arrived, Gilbert handed her the fee consensually, and Frago left without having sex with Gilbert. Frago did not take money out of Gilbert’s hand, house, or wallet. She did not take it with intent to deprive him of his money, but with the intent to get paid for her time.
For the purposes of this article, let’s say it isn’t illegal to sell or purchase sex of any kind in Texas. Let’s say that Frago and Gilbert agreed that he would pay her to come to his house, spend time with him and during that time they would have sex and this was a completely legitimate agreement. Frago’s actions still wouldn’t fit under the definition of theft because he paid her willingly and she made good on a portion of their agreement. Perhaps he would have a civil claim for breach of contract, but her actions certainly do not fit the elements for a criminal charge of theft.1 Gilbert’s defense simply doesn’t stick.
Back to the jury. They’ve now heard testimony to support the prosecution’s argument that Gilbert is guilty of murder. They’ve also heard his defense attorney argue that, while he did shoot Frago, he cannot be convicted of murder because he shot her to stop the theft of his property, which is a protected activity under Texas law. The jury then went into a room and debated whether or not his actions constituted murder, and if they did, if it could be excused because his actions fit the allowed defense. In that room they had the laws I listed here. They considered the facts and the evidence and applied it to these elements and somehow came out with an acquittal. A judge can’t overturn an acquittal, so that’s it. That’s the end of the story.
Except that it isn’t, because now a precedent has been set. The definition of “theft at nighttime” has been allowed to be defined so broadly that it now includes incomplete personal service, regardless of the legality of the service itself. You pay your hairdresser to come over and do a cut and color and she leaves with her payment without finishing your highlights? Feel free to shoot her down.
This precedent is exceptionally deadly for women, both in the sex industry and not. Sex workers who feel uncomfortable when arriving to see a client and choose to not have sex with him have the threat of legally sanctioned death hanging over their head. But this can expand past that. Imagine the woman who answers a vague house cleaning post, babysitting post, or secretary post (all jobs I’ve seen listed on Craigslist that have carried an insinuation that sex was expected) and the man hiring her decides that sex is a mandatory part of the position. Her options now are: 1) have sex she does not want to have, 2) not be paid for her time/work or 3) get shot.
These are not acceptable options. So what can we do about it? On a macro level, we can get involved in the legal and legislative systems. We can set up meetings with prosecutors to discuss with them the dangers and challenges that sex workers face and help them build the theories of their cases to include these facts when a sex worker is harmed. We can challenge the vagueness and breadth of laws like these because they not only harm sex workers but service workers generally, who disproportionately tend to be people of color, undocumented workers, and women: those who society is not jumping to protect.
On a smaller scale, we can speak up about our rights and urge our allies to do the same. We can squawk every time the word “whore” is used to slam someone, do some Sex Worker Education 101 when we hear the inevitable “what did she expect” in regard to cases like these, and set fire to the sex worker caste system. We can—and must—do everything we can to chip away at the stigma of what we do. Because if this case had been the hairdresser hypothetical a few paragraphs above, the absurdity of Gilbert’s defense would have shown through instead of being expanded to potentially harm us all.
1. It is interesting to note that in contract claims, you cannot sue for personal service. Contract law states that you can sue for the monetary value of the service, but the court cannot force a person to do perform a personal action. In civil court, Gilbert would have been able to sue to get his money back but not to force her have sex with him. Civil law finds it unconscionable to make someone do a “personal service”, but apparently it’s fine, in Texas, to kill over it.↩