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Advocates Say Brooklyn D.A.’s Office Is Prosecuting Transgender People In Self-Defense Cases

Decision-making by prosecutors in such cases, says one attorney, ‘compounds, entrenches, and ultimately authorizes the initial act of violence by prosecuting the victim.’

Photo illustration by Anagraph/Photo by Tina Potocki/Getty

“I can hardly breathe,” Asher Torres told the 911 operator, as he strained to get the words out between gasps. “I’ve been so hit so hard.” It was approximately 1:30 a.m. on Oct. 4, 2017, and Torres, 34, was calling from the lobby of the Wythe Hotel in Brooklyn’s Williamsburg neighborhood. Torres and his boyfriend, 25-year-old Stevie Sullivan, were attending a party when they said they were attacked. “This person had a problem with us because we’re trans,” Torres told the operator as he described the assault and his injuries, “and he just went after my partner.” 

But when officers from the NYPD’s 94th Precinct arrived at the Wythe, they arrested Torres and Sullivan instead of the individual Torres had identified as an assailant, hotel employee Alex Hernandez. Soon afterward, and despite surveillance video from the hotel indicating Hernandez striked the couple before they fought back, prosecutors from the Brooklyn district attorney’s office filed misdemeanor charges against Torres and Sullivan that included assault, attempted assault and menacing in the third degree.

For transgender advocates, the Sullivan case is emblematic of the persistent risks to their safety as well as the legal peril they face when they defend themselves. Many gender nonconforming people live with the constant threat of violence. In 2017, advocates tracked at least 29 killings of transgender people in the United States, the most ever recorded. Yet instead of receiving support from the criminal justice system, victims who survive violence are often retraumatized or criminalized by it. This appears to be true even in Brooklyn, where District Attorney Eric Gonzalez has made an explicit commitment to support LGBTQ crime victims. “This case points to mistreatment and criminalization of transgender people at the hands of law enforcement and why transgender people are often reluctant to report harassment and violence to law enforcement,” said Shelby Chestnut, co-director of policy and strategic projects at the Transgender Law Center in Oakland, California. “All charges against Stevie should be dropped.”

When contacted by The Appeal, the Brooklyn district attorney’s office refused to comment on Sullivan’s case, citing its policy of not commenting on pending litigation. Instead, a spokesperson emailed a statement, which read in part that “our office has incorporated cultural competency training for all prosecutors, encourages all victims of hate crimes to call our Helpline … and has vigorously pursued bias-motivated crimes against LGBTQ individuals. Nearly a third of cases handled by our Hate Crimes Unit this year involve attacks against this vulnerable population. We continue to evaluate all the facts and circumstances in the case in question.”

Sullivan had previously worked at the Wythe’s rooftop bar, the Ides. He returned to the hotel last October to attend a going-away party for a former co-worker. Moira Meltzer-Cohen, Sullivan’s attorney, says Hernandez, the alleged attacker, was her client’s manager when he worked at the Ides and would berate and stare at him for long periods of time. Emails reviewed by The Appeal indicate that in May 2017, Sullivan sent to an email to the hotel’s human resources department in which he he raised concerns about Hernandez’s aggressive conduct.

The matter was never resolved, and Sullivan eventually got a job elsewhere. The two men encountered each other again on the night of the party, in the lobby of the bar. Surveillance footage from the hotel reviewed by The Appeal shows Sullivan and Torres chatting as they wait for an elevator to take them down from the rooftop bar to the hotel lobby. When Sullivan walks down the hallway to look for a friend, Hernandez enters the frame. While Sullivan’s back is turned, Hernandez charges at him and shoves him into an elevator door. A moment later, Sullivan recovers and pushes Hernandez against the hallway wall. The men grab at each other’s clothes and limbs, wrestling for control. Torres then attempts to separate the two but instead gets drawn into the scuffle. The fight only stops with the arrival of hotel security.

Meltzer-Cohen says that when police reviewed the surveillance footage they incorrectly concluded that the fight began when Sullivan tripped Hernandez. (Hernandez does appear to stumble in the video, but there is no indication that was a result of Sullivan’s conduct.) The NYPD did not respond to a request for comment. The Wythe terminated Hernandez about a week after the incident for violating its anti-violence policy, according to a personnel document subpoenaed by the defense and reviewed by The Appeal.

Like Sullivan, many in the transgender community have faced prosecution for defending themselves. In late 2017, transgender activist Ceyenne Doroshow was arrested and charged with assault in Queens after she says she defended herself from an abusive partner. In June 2012, CeCe McDonald, a Black transgender woman in Minneapolis, was sentenced to 41 months in prison for second-degree manslaughter after she fought off a group who assaulted her and her friends outside a bar. (One of the assailants died after McDonald stabbed him with a pair of scissors she’d retrieved from her purse.) Ky Peterson, a Black trans man from Georgia, is serving a 20-year sentence for shooting a man who raped him in a trailer park.

Gonzalez, the Brooklyn DA, has promised to better serve LGBTQ New Yorkers; he launched an initiative to train prosecutors to ensure that they are culturally competent in relating to LGBTQ crime victims and to “get the word out that the District Attorney’s Office is a safe space to report crime.” “As prosecutors charged with keeping the community safe,” Gonzalez said during a 2017 Pride Month celebration, “it is important that we establish a safe space for the LGBTQ community to report when they are victims of crime, especially since crimes against this community have historically been underreported and violence against transgender women of color continues to rise.”

Yet the Sullivan case isn’t the first instance where the Brooklyn district attorney’s office under Gonzalez has been accused of aggressively prosecuting transgender people involved in relatively minor altercations, even when their behavior may have been a reaction to past trauma. In December 2015, a Black trans woman named Merci Chrisette was charged with assault, criminal possession of a weapon, and reckless endangerment after she lunged at two people on a subway train with a hair separator. In May 2018, after a campaign in support of Chrisette, the DA’s office allowed her case to be transferred to the borough’s Mental Health Court. Established in 2002, the court enables people with serious mental illnesses to avoid jail time as long as they follow a mandated treatment program.

In interviews with The Appeal, defense attorneys described at least two other cases in which transgender people have been aggressively prosecuted by the Brooklyn district attorney’s office after either an incident of domestic violence or a street assault. This pattern of decision-making by Brooklyn prosecutors on cases involving transgender people “compounds, entrenches, and ultimately authorizes the initial act of [transphobic] violence by prosecuting the victim,” Meltzer-Cohen said. “It’s the result of totally unexamined, pervasive, institutional transphobia.”

The October 2017 fight at the Wythe may have only lasted about 15 seconds, but it has had a long-lasting impact on Sullivan and Torres. Since the incident, the couple have had to miss work to attend court dates and manage the emotional, physical, and financial toll brought on by the assault and potential criminal convictions. On October 15, Sullivan and Torres appeared in Kings County Criminal Court and agreed to an adjournment in contemplation of dismissal which allows their case to adjourned for a few months; if they stay out of trouble, the charges will likely be dismissed. Torres and Sullivan must also comply with an order of protection for Hernandez.

“[This experience] has made it obvious to me that existing as a queer, trans person is not safe,” Sullivan said in a statement released through his attorney. “This started with me being attacked. My assailant was never arrested, but I was charged with assault. This prosecution has gone on for over a year. It has been terrifying.”