If a certain crime can only be committed by a male, can there be justice for the accuser when the male defendant is called “she?”
A case in Madera County, California, winding its way to trial, will soon decide guilt or innocence of the defendant, Tremaine Carroll, a trans-identifying male. It will also test how far the U.S. criminal justice system will go to affirm the beliefs of men who profess female identities when they stand accused of the overwhelmingly male crime of rape.
Outside the U.S., compelled use of female pronouns to describe accused male sex-offenders has been widely reported, resulting in such verbal abominations at trial and in rulings as “her penis.” But this case may be the first in the U.S. to compel the use of female pronouns to describe a man accused of rape.
Carroll is a felon in the California prison system. Since the state’s Transgender Respect, Agency, and Dignity Act took effect in 2021, men in California prisons, including violent felons like Carroll charged with sex offenses who have intact genitals, can request transfer to women’s prisons based on self-identification as transgender. After serving more than twenty-two years in the men’s prison, Carroll was thus transferred to a California women’s correctional facility in 2021 — because he claimed to be a woman.
Besides being a violent felon, Carroll is also one of four trans-identified male inmates hand-selected by the American Civil Liberties Union to intervene in a lawsuit brought by my organization on behalf of six female inmates. We charge (among other things) that placing males in women’s facilities subjects female inmates to cruel and unusual punishment under the Constitution’s Eighth Amendment, including sexual assaults, attempted rapes, voyeurism and a pervasive climate of sexual intimidation.
WCMH: healthy cardiac monitoring act
Awkwardly for the ACLU, Carroll was eventually returned to the men’s facility after being accused of raping two female inmates within a 24-hour period.
A hearing took place on Dec. 16 to decide whether the court would compel the prosecution and witnesses in Carroll’s rape trial to refer to him by she/her pronouns. Representing the people of California, Deputy District Attorney Eric DuTemple objected that to do so would undermine the charge. Carroll, he noted, “is a biological male with male genitalia who is currently housed in a male prison and is accused of committing two rapes against two females, a crime that can only be committed by a biological male. … [T]he court compelling us to use that language, which is contrary to the facts, could indicate approval for the defendant’s legal position.”
Forced usage of these pronouns also certainly runs contrary to our legal theory of the case — that the defendant is using the pronouns simply to get into a female prison so he can carry on such unlawful sexual contacts or rapes.
The defense most succinctly described what was at stake in the judge’s ruling, stating, “This case really is about setting a precedent across the board” for referring to transgender litigants. The use of incorrect “she/her” pronouns would lead to confusion at trial and in court hearings. It would also be disrespectful and traumatic to the victims in any such future cases, forcing them to police their own language while testifying about being raped.
In this case, to call Carroll “she” would deprive the people of California of justice. “She” refers to a female, and no female could commit the crime of which Carroll is accused, which involves vaginal penetration by a penis. It would also be an affront to his female accusers, who know full well the sex of their attacker.
Judge Katherine Rigby rejected the argument that using she/her pronouns would interfere with the prosecution’s rape charge, leaning heavily on nonbinding discussion in a California case that observing a litigant’s professed “gender identity” is a matter of “respect, courtesy, and dignity” and protections for “gender identity” in California judicial canons. And so in a trial involving forcible rape — a crime only a male could commit — she ordered the prosecution to refer to the defendant by female pronouns.
But Rigby deferred ruling on how witnesses can refer to the defendant. Perhaps she understood that the principles of “respect, courtesy, and dignity” are inconsistent with requiring a witness to refer to the man she has accused of raping her as anything other than a man.
The point at which she will have to make that decision is now approaching. A hearing to set the trial date will occur on March 6, and additional motions on the pronoun issue can be expected.
Should this case go to trial, justice can only be served by reversing the order requiring the prosecution to use female pronouns and by allowing witnesses to testify freely, in truthful terms, unrestricted by gender circumlocutions.
A trial is a process for arriving at truth. Should the court subvert the hard truth of Carroll’s sex — which is foundational to the rape charge against him — to the subjective feeling of gender identity, the trial risks becoming instead a taxpayer-funded exercise in affirmation of the accused at the expense of justice for his accusers.
