In 2017, 28 transgender women in the United States were murdered. Last week, a Texas judge ruled that the person accused of one of those deaths will not see a trial.
Texas 187th Criminal District Court Judge Joey Contreras, a Republican up for reelection, ruled that actions by Mark Daniel Lewis who had been accused of causing the drowning of Kenne McFadden, a 26-year-old Black trans woman, along the San Antonio Riverwalk last April, did not rise to the level of criminal conduct. The ruling was made during a probation hearing for failing to register as a sex offender.
According to the San Antonio Express News, the district attorney’s office attempted to use the charge of manslaughter against Lewis for the death of McFadden as means to revoke the probation. The district attorney’s failure to show preponderance of evidence to prove Lewis violated the terms of his probation eliminates any possibly of a trial because of the double jeopardy rule.
Lewis was indicted in November 2017 based on allegations that he had “recklessly” caused the death of McFadden. In the probation hearing, the prosecutor presented evidence that Lewis had admitted to pushing McFadden into the water.
According to police testimony, Lewis and McFadden were seen together by area police patrols multiple times on the night of the incident, April 7, 2017. A San Antonio park police officer testified that Lewis approached him and stated that he had pushed someone into the river. Yet the officer, Terry Hardeway, checked the area but saw no one in the water. Her body was found two days later. Lewis was interviewed by a San Antonio detective in Bexer County Jail, where he was in custody for an arrest in a different case. In a videotaped statement Lewis stated at first that he did not know McFadden, but then admitted that they had met before.
Lewis also said that McFadden was intoxicated, and that they shared a consensual kiss, and that McFadden attempted to grope him, and that he pushed her, causing her to fall into the water.
According to the Express News, Contreras stated the drowning was “a terrible tragedy that occurred,” but decided that it was “not true” that Lewis violated the terms of his probation. Reaction from the trans community in the San Antonio metro and the state was swift, with protests planned for Tuesday March 13, coordinated by Trans Education Network of Texas (TENT), the San Antonio Gender Association (SAGA) and Pride Center San Antonio. Demands include to both get justice for Kenne McFadden’s murder and to remove Contreras from his position. Those interested in participating to demand justice for Kenne McFadden can follow this Facebook page.
It’s a sad and revealing truth that trans people, especially trans women of color, are almost never afforded the same justice that other crime victims are. Between the high likelihood of being revictimized if they choose to go to law enforcement for help and the existence of legal loopholes for transphobes to get away with hate crimes, the injustice in Kenne McFadden’s case is far from the first of its kind. Of the 6,450 respondents to the National Transgender Discrimination Survey, nearly half stated that they did not feel safe going to police for help. Furthermore, 41 percent of Black respondents stated that they had been held in a cell exclusively because of their gender identity or presentation. There was also barely any difference between the level of comfort with police between the overall sample and those who had never worked in underground economies or been incarcerated. This shows that even without direct exposure to the criminal justice system through incarceration or underground economy participation, exposure to transphobic law enforcement is enough for the average trans person to not seek assistance.
For those who engage in hate crimes, the “trans panic” defense is still legal in almost all states in the U.S. Gay or trans “panic” refers to a person claiming their disgust or fear of someone’s gender identity or sexual orientation caused them to harm or murder their victim. While no “panic” defense was explicitly employed by Kenne McFadden’s killer — largely because he was allowed to walk free before he even needed to properly formulate a defense –Lewis’s statement about his actions smacks of the same bigoted attitude many murderers before him have had. In misgendering McFadden repeatedly and referring to an alleged unwanted sexual advance to excuse his actions, Lewis sounds just like the homophobic and transphobic assailants who have used the panic defense in trial.
Mainstream media and transphobic hatemongers alike are insistent on spreading the image of Black women — especially Black trans women — as violent and dangerous. As LGBTQ advocates, progressives and revolutionaries, it is crucial for us to challenge these narratives and expose transphobia everywhere it appears. Trans women of color are most at risk of discrimination, harassment and assault, and all people must band together to fight back against both the bigots that attack our community and the system that protects them.