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Ezekiel Gilbert Trial: No, Texas, Shooting a Prostitute Who Won't Sleep With You is Not "Self Defense"

On Christmas Eve 2009, Ezekiel Gilbert, 30, shot Lenora Ivie Frago, 23, in the neck. She was paralyzed; seven months later, she died due to complications from that injury. On June 6, 2013, Gilbert was acquitted of that crime. He was acquitted because he claims she accepted $150 for escort services but did not have sex with him, which means that he was just defending his property. This acquittal shows the dangerous use to which such common "self-defense" laws can be put.

Gilbert's acquittal did not reflect his innocence. In fact, he admitted to the murder. It rested on Texas Penal Code § 9.42: Texas Statutes - Section 9.42: Deadly Force to Protect Property. Under that law "A person is justified in using deadly force against another to protect land or tangible, movable property … (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime [and] he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means."

Gilbert claimed he believed that sex was included in the $150 fee he paid to Frago as an escort; thus, when Frago did not have sex with him, he considered her a thief. Gilbert was probably also concerned about his inability to recover the money, as it would have required admitting to attempting to solicit a prostitute. As such, his attorneys successfully argued, the Texas law permitted the murder.

Criminal prosecutors Matt Lovell and Jessica Schulze, on the other hand, disagreed. Even with the Texas law, they argued that Gilbert's behavior was not protected. The law, they said, only protects "law-abiding" citizens; it does not protect those attempting to force the commission of an illegal act, such as prostitution, as would have been required of Frago.

Obviously, prostitution is illegal in the majority of the United States, which means that these people — if Frago was a prostitute, as is claimed – were already committing a crime. Also, admittedly, punishing Gilbert will not bring back this poor young woman. However, those facts to not obviate the problems with a law that justifies murder by the supposed theft of $150.

Texas is not the only state with such a law, though it has one of the most permissive standards. Several states have laws allowing deadly force against thieves, often with no requirement to retreat. For instance, Alaska allows deadly force "to the extent the person reasonably believes the use of deadly force is necessary for self-defense against … robbery in any degree." The Code of Georgia states, "A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property." Indiana law grants that "A person: (1) is justified in using reasonable force, including deadly force, against any other person; and (2) does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle." These are just a few of the several states that allow the use of force against threats to home or property.

It requires no stretch of the imagination to understand why states allow their residents to defend their homes and their loved ones. However, it also requires no stretch of imagination to see how these laws can be manipulated or abused, used to protect those who murdered for anger or revenge, not fear, or who killed in situations when less than deadly force would have been sufficient.

Legislators need to be aware of and respond to these complexities in the law, such that the law can protect and allow people to protect themselves. That way, society can make sure it protects itself against dangerous criminals but does not allow a man to kill a 23-year-old escort because she would not have sex with him.

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