How an Insane Texas Law Made It Legal for a Man to Kill a Prostitute

Dude, Texas, what the fuck? Earlier today, a Texas jury acquitted Ezekiel Gilbert of murdering 23-year-old Lenora Evie Frago. Frago was an escort who Gilbert met through an ad on Craigslist. Gilbert says he thought sex was included in Frago’s $150 fee. Frago tried to leave after taking the money and without having sex with Gilbert. Instead of letting her go, Gilbert shot and paralyzed Frago to get his $150 back. Frago later died of her injuries.

Texas prosecutors charged Gilbert with murder, but at trial he advanced a defense based on a Texas law that allows people to “use deadly force to recover property during a nighttime theft.” A nighttime theft! A fucking evening hours caper! Yes, shoot everyone who creeps around in the night nabbing your property. Sound policy decision. No problems here at all. Anyway, the jury agreed that Gilbert was justified in shooting and killing Frago, the infamous Craigslist Escort Nighttime Pilferer. And all in the greater San Antonio area slept soundly that night.

Wait, hold up. How is any of this legal? It should be stated upfront that Texas is bananas when it comes to recovering property. Not every state has some weird “nighttime theft” law that gives you the right to use deadly force to recover your property. In fact, the law usually does not let people shoot and kill whomever they want to defend or recover their property alone. This is because IT’S JUST PROPERTY. It’s just $150! You don’t need to shoot, paralyze, and kill anyone over a broom or a chair or $150 or $150,000. This is because property is replaceable—the law has said, as a general matter, the value of human life is greater than whatever dumb tchotchke you care so much about. Even if that human life is stealing something from you. This is different from self-defense, where your actual bodily security or life is at stake. There, the law says, “Be reasonable, but if it comes down to you or the bad guy, better take out the bad guy,” because your life is not replaceable. So in this regard, Texas has really outdone itself.

It’s also important to note that Texas has not passed some sort of special legislation giving deranged assholes the right to shoot escorts with impunity for refusing to engage in sexual activity. The “nighttime theft” defense is an affirmative defense that deranged assholes can argue in court, but it’s up to a jury to decide whether or not the defense is believable. In Gilbert’s case, they bought it. But this is a jury made up of Texans who probably don’t much care for the profession of “escort.” Prosecuting defendants whose victims are sex workers is notoriously difficult—juries are more than willing to see the victim as unworthy of sympathy or protection or to see them as complicit in their own demise. But this same attitude—that sex workers are undeserving justice because of what they do for a living—only makes them more attractive as victims of violent crimes, and less likely to report violence when they are victims.

If you’re outraged by this verdict, you should be. Ezekiel Gilbert sounds like a right turd. Fortunately, there’s probably no need to worry that this case is the start of a new, terrible trend (although it doesn’t exactly help remedy the old trend of cultural permissiveness of violence against women). I’m going to hazard a guess that had Gilbert advanced this defense in any other type of case—nighttime cow theft, nighttime garden gnome snatching—that the jury would have rejected it outright. But because Frago was just a “Craigslist escort,” the jury decided that her life just wasn’t worth $150.

Meagan Hatcher-Mays is a recent graduate of Washington University Law School in Saint Louis. She does a significant amount of yelling on Twitter.

Image by Jim Cooke.