By Regina Austin
It is a source of pride among many members of the legal profession that the law, in determining what behavior should be criminalized, challenges society’s efforts to rank groups of people along a hierarchy, from high to low, from good to bad, from above reproach to downright deviant. On other occasions, the law is, regrettably, no more sensitive to the role stereotyping and unjustified discrimination play in such ordering than laypeople. When a criminal statute gets it wrong, however, the consequences for those tagged with an unsupportable or misapplied classification may be life-altering or life-threatening. Consider what can happen when the state, like ordinary citizens, misuses the label “gang.”
“Out in the Night” is the story of the criminal prosecution of a group of black, young-adult (ages 19-25), working-class lesbians from Newark who were out for the night in New York City. They responded to street harassment, got labeled a gang, and wound up in prison. If that sounds like the intro to an account of a nightmare or a fall down a deep, dark hole, it is. (The documentary was directed by blair dorosh-walther; it was recently broadcast on PBS and is available on Logo.)
The relevant events took place in the early morning hours of August 18, 2006. A black man in his late 20s, who was promoting his film in front of the IFC Theater at Sixth Avenue and West Third in Greenwich Village, made a crude “pass” at one of the young women. She politely informed him of her sexual orientation. A verbal exchange erupted between the man and the young woman’s companions and a physical altercation followed during which at least two other unidentified males came to the defense of the women. Unfortunately, the man was stabbed during the fracas.
There are, of course, two different views of what occurred, why it occurred, and how much harm the parties actually suffered. For example, the man characterized the women’s conduct to the press as “a hate crime against a straight man” while supporters of the women characterized the man’s conduct as “gay bashing” or “a homophobic street attack.” Silent footage from video cameras mounted on the theater does not definitively resolve the factual disputes.
Ultimately, seven women were charged with assaulting the man; no charges were brought against him. Three of the women pled guilty and were sentenced to six months and probation. The rest decided to go to trial because they believed that they had acted in self-defense. They were Renata Hill, Terrain Dandridge, Venice Brown, and Patreese Johnson. They came to be known as the “New Jersey Four.”
All of the women were found guilty of gang assault by a jury. Three of them were also found guilty of assault. Originally their sentences ranged between 3½ to 11 years. On appeal, one defendant was totally exonerated. Two were granted new trials on the charge of gang assault based “on the law and as a matter of discretion in the interest of justice.” Both received reduced sentences after taking a plea. The fourth defendant had her two longest sentences “modified” from 11 years to 8 years “as a matter of discretion in the interest of justice.” I suspect that the appellate panels concluded that the prosecutor overcharged the women and the judge sentenced them too harshly. (The appellate decisions and an opinion in the tort action brought against the seven women by the man are available online.)
“Out in the Night” is not your typical nonfiction account of an ongoing, unresolved criminal case. Instead of suspenseful storytelling and an outcome that restores faith in the American criminal justice system, it offers a realistic illustration of the way in which the pursuit of justice can be a slow, nerve-wracking, arduous, and expensive grind that may not end at a destination called “Vindication,” however much the parties may deserve it. The convictions and sentences the defendants received were virtually preordained because of their status as purported members of a “lesbian gang.” The documentary calls into question a criminal justice system in which who you are perceived to be matters more than who you really are and what you have actually done.
The association of the young women with a gang was first made by police officers at the scene on Sixth Avenue in statements to police dispatchers. It continued in the news reports of the incident in the New York tabloid press with headlines such as “Girls Gone Wilding, Lesbians Locked Up in W. Village Beating,” ”Girl Gang Stabs Would-Be Romeo-Cops,” and “’Hated’ by Lez Gang; Straight-Bash Claim.”
Finally there was the “gang assault” law that the prosecutor invoked, the jury applied, and the judge sentenced on. A bit of legal research turned up § 120.06 of the N.Y. Penal Law which reads as follows: “A person is guilty of gang assault in the second degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or a third person.” This is what is known as a “gang enhancement statute.” In People v. Sean Fatal, an appellate panel explained that “[t]he Legislature reasoned that joint action by numerous assailants is ‘not only terrifying to the victim but tends to increase the likelihood that severe or lethal injuries will be inflicted’ and therefore warrants a stiffer penalty.”
The language of the provision suggests that a “gang” exists where one person commits an intentional assault and two others are actually present and assist her or him. As the court stated in Fatal, “there is no element requiring that any of the participants in the offense be affiliated with an organization or even with each other prior to the commission of the assault.” At the same time, the term “aided” is not defined. Note too that the New York legislature invoked the concept of “gang” in the title of the law without putting any restraint on how the baggage associated with the concept of a gang might be used to support a conviction.
What does the term “gang” bring to mind? Many people would no doubt define a gang as a loosely organized and led association of poor young minority urban males who are united primarily for the purpose of engaging in violent, antisocial, and criminal activity and generally recognizable to outsiders on account of their outfits, argot, rituals, and physical location. (For a full discussion of the definition issue, see Z. Fudge’s article in the Marquette Law Review.) Unlike fraternities, teams, bands, and even military units which may exhibit behavior of the same sort (including hazing, illegal drinking and drug use, sexual abuse of women, mistreatment and ridicule of outsiders), gangs are not generally considered wholesome enterprises for character building, recreation, and mutual support. Of course, the more lenient treatment accorded other bastions of male bonding reflects assumptions, not applied to gangs, about the socioeconomic status of the members, the value of their collective socialization to the society, and the cloistered locus of their activities (colleges, universities, sports fields, military installations, naval ships, and battlefields).
But what is worse than a male gang in the estimation of society? A female gang!! As poorly as male gangs are viewed, female gangs are accorded almost no respect, even though they, like their male counterparts, may be grappling with poverty, racism, gender role expectations, and violence. Now suppose the gang members are black and lesbian. Blacks’ membership in gangs is overestimated and black criminality and violence, exaggerated. Furthermore, black females, regardless of sexual orientation, are masculinized and considered more aggressive than females of other races.
The mere association of a defendant with the term “gang” can impede her or his ability to receive a fair trial. An empirical study by Mitchell Eisen et al, published in the UCLA Law Review Discourse, concluded that “introduction of testimony indicating any sort of association with a gang, even a weak one, can have a significant prejudicial effect on jury verdicts.”
Charging the “New Jersey Four” under a “gang assault” statute seemingly allowed the jury to draw on the stereotypes described above and to treat them like “a gang” under the statute, a conclusion the defendants would be virtually powerless to overcome. Since the concept of “gang” is vague, the jury was free to apply the law to circumstances involving no real enhanced risk to the other party. If mere proximity to the action or any connection with each other sufficed to increase their criminal responsibility, their constitutionally protected right of association meant nothing. Given the taint of gang membership, the jury was more likely to view their response to the harassment they encountered as offensive, not defensive, as an overreaction, rather than a reasonable reaction, to threatening provocation.
The defendants’ experiences as young, urban, working-class black lesbians out on the street at night could have been relevant in supporting their self-defense claim. They apparently sought to have the reasonableness of their perception of the risks posed by the man’s conduct judged with regard to their individual and collective exposure to violence, which included the murder of Sakia Gunn. In May of 2003, Sakia Gunn, a fifteen-year old black lesbian, was murdered on the streets of Newark by a homophobic assailant following an exchange much like the one that occurred in front of the IFC in Greenwich Village. One of the defendants had met her just the week before her death. The court refused to allow it. He admonished the defendants to consider the old adage “Sticks and stones may break my bones but words will never harm me.” (Compare this with the case of Bernard Goetz, the New York subway vigilante, who was exonerated of “the charge of self-defense” because the jury, when determining if he was reasonable in shooting four young black men, one of whom asked him for $5, was allowed to consider the fact that he had been previously mugged.) However, the judge’s error with regard to his jury instruction on the obligation to retreat, an element of self-defense, was a factor in the reversal of the gang assault conviction of two of the defendants.
“Out in the Night” establishes that the defendants were not members of a gang of any kind. The film humanizes and individualizes the four by revealing the context of their lives, particularly their community and their relationships with their families and each other. It gives them a chance to speak reflexively about their situations. The audience sees them change and mature overtime as they fulfill old roles and assume new ones—as mother, daughter, sister, aunt, partner, wife-to-be. One experiences the death of a second brother to gun violence and another the death of a mother and the loss and eventual restoration of custody of a child. The women, wiser now, find strength in their relationships with friends, family, and each other. They become politically aware and politically active. Upon release from prison, they “re-enter” their communities as formerly incarcerated persons, but with positive outlooks and resilience.
It is true that “Out in the Night” focuses on the subjectivity and agency of the defendants, their loved ones, and their supporters, but how else would the director have gotten such access to their stories while their criminal appeals were pending. Still, the documentary is objective in that it deconstructs biases and stereotypes (particularly those associated with so-called “black female gangs”) and exposes the audience to individuals they are not likely to encounter in the mainstream media. “Out in the Night” is important for its rich, complex portraits of four black, working-class lesbian women from Newark who struggle not only to overcome the consequences of an ugly episode of public harassment and violence that entangled them in the New York criminal justice system with its problematic gang assault statute, but also to achieve the acceptance and recognition that will allow them to obtain equal rights and secure decent livelihoods.