In Greeley, Colorado, a trial will begin this week for Allen Andrade, who is accused of murdering Angie Zapata. Zapata (former first name “Justin”) was a female transgender person. It appears that Zapata tricked Andrade into a sexual relationship. Andrade was led to believe that Zapata was a female in the conventional sense of the term; when he found out otherwise, he flew into a rage and beat Zapata to death.
Colorado law for sexual assault states that there is no “consent” if the consent “is induced by force, duress, or deception.” Accordingly, Zapata may have perpetrated the crime of “unlawful sexual contact“, which is a Class 1 misdemeanor and is subject to enhanced sentencing as an “extraordinary risk crime.”
As detailed in an article in the Greeley Tribune, GLBT activsts are hoping to use the Andrade prosecution as a springboard for enactment of a federal hate crime law for sexual orientation, the Local Law Enforcement Hate Crimes Prevention Act. The Greeley Tribune accurately quotes my views that hate crime laws in general are a bad idea, and that therefore expanding the laws is bad idea, regardless of arguments made about whether some particular group should or should not be included. That view is set forth in this 2003 Issue Paper.
However, if I were a lobbyist who supported the federal proposal, I would be wary about making Zapata into the face of a lobbying campaign. Matthew Shepard was entirely innocent, and was, accordingly, a sympathetic person around whom to build a campaign. In contrast, Zapata was (on what appears to be an uncontested version of the facts, although the trial might reveal otherwise) criminal whose death resulted from unjustifiable retilation by the victim. Of course Zapata did not deserve to die, but people who perpetrate sex crimes by deception are not particularly sympathetic characters.
UPDATE: Some commenters were interested in the question of whether the linked section of Colorado law is applicable to the definition of “consent” for sex crimes. It is. See People v. Holwuttle (Colo. App. 1986). There is an additional set of definitions in Colorado law for sex crimes. In relevant part, it states, “‘Consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act.” The Holwuttle approves of blending these two definitions into a single jury instruction. If we hypothesized that only the second definition applied, I do not think it changes the legal analysis. As applied to sex, “the nature of the act” certainly includes the sex of person with whom one is performing the act; maybe some bisexuals would be indifferent as to the other person’s sex, but I think that the vast majority of people would consider a person’s particular sex to a sine qua non for their consent to a sexual act with that person.