Until now, Julita Cabillan fondly calls her daughter, “Ganda.” To the rest of the world, she is known as Jennifer Laude, Jeffrey to those who cannot accept that a person can choose his or her own gender identity. Whatever you call her, she’s now just a name, a memory.

For Julita, the lower court verdict convicting US Marine L/Cpl. Joseph Scott Pemberton of homicide means her daughter’s killer will not get the punishment he deserves. For the LGBT community, it brings a question to the fore: is our justice system ready and competent enough to handle cases of LGBT hate crimes?

How to Get Away with Murder

The lengthy decision from Olongapo Regional Trial Court Branch 74 Presiding Judge Roline Ginez-Jabalde was read for almost three hours on national television on December 1, 2015. The victim, Filipino transgender woman Jennifer Laude, was found dead in the bathroom of a lodge in Olongapo City on October 11, 2014 with her head submerged in the toilet bowl.

She sustained pressure marks on her neck, which according to forensic findings proved she was pinned against the rim of the toilet bowl.

But the lower court ruled there was not enough evidence to prove it was murder. So the punishment was reduced one degree lower. Pemberton was sentenced to only six to 12 years of imprisonment, instead of reclusion perpetua or at least 20 years of jail time, had it been murder.

According to Branch 74, the prosecution failed to establish the three aggravating circumstances that constitute a murder: treachery, abuse of superior strength and cruelty. The court said there was no treachery because the killing of Laude was not planned or premeditated and there was no eyewitness account to prove that the victim was attacked swiftly from behind.

To establish abuse of superior strength, the prosecution must be able to prove that the suspect indeed was stronger than his victim. The court said it was not enough that the prosecution pointed out that Pemberton is a US Marine, and therefore was subjected to extensive physical training by the strongest military force in the world.

Moreover, the court cited the gender Jennifer was born with. They said there was no expert testimony to prove that Pemberton, who was then 19 years old, was stronger than 26-year-old Laude, who was “biologically born a man but dressed and acted like a woman.”

Positive identification Witness tags Pemberton as the man in the CCTV footage Jennifer Laude 19-year-old suspect

Mitigating Circumstances

Above all those, the court said they found two mitigating circumstances that warranted the case should be reduced to homicide. First is that Laude “deceived” Pemberton about her real gender. And second is that Pemberton was intoxicated and was not in his proper state of mind when he committed the crime. Hence, the court ruled there was “passion and obfuscation arising from a lawful sentiment” on the part of Pemberton.

These parts of the ruling raise flags for the LGBT community on matters of equal protection under the law, and how they are protected against hate crimes.

Atty. Harry Roque, private prosecutor and one of the Laude family’s legal counsels said: “Ako po, galit na galit ako, (I am very mad) ‘dun sa mitigating circumstance ng passion and obfuscation because that will encourage hate crimes against the LGBT community.”

According to Roque, the court ruling is discriminatory of the LGBT: “Para bagang, okay, naintindihan namin ang galit ninyo laban sa LGBT, kaya kapag nakapatay kayo, mas mababang parusa ang makukuha ninyo.” (It seems, okay, I understand that you are mad against the LGBT. This is why if you were able to kill one of them, you will get a lower sentence).

We talked to several LGBT rights advocates to expound on the subject. UP Law Student Christian Jay Millena, who also plans to put up an organization to push for equality in law, said the verdict was absurd: “For passion or obfuscation to be appreciated, it must arise from a lawful sentiment. Does that mean now that it is lawful to hate a person you initially didn’t know was a transgender? If Pemberton became impassioned after he learned that Laude was a transgender, and we sustain that as a mitigating circumstance, it’s short of saying that Laude deserved to be killed for being a transgender.”

Ariel Guban, founder of Bicol region’s first university-based LGBT organization Magenta (Moving Ahead for Gender Equality) also believes the Pemberton ruling is a gender issue: “Ang mga bakla, kapag naabuso, or in Laude’s case, napatay, parating may stigma at bias. (Gays, when they are abused, or in Laude’s case, killed, there is always stigma and bias). Because generally, LGBT rights are still not fully acknowledged in this country.”

He added that the verdict mirrors how selective the Philippine justice system can be against the marginalized sectors of society. For Magenta, the Pemberton verdict is an eye-opener for the Filipinos and the LGBT community to work harder to push for gender equality.

On the wings of love. Photo courtesy: UP Babaylan

Opening the Discourse

In the United States, the Federal Bureau of Investigation (FBI) said that 16% of the total number of cases of hate crimes in 2013 were bias against sexual orientation. In the Philippines, it is not possible to index the same data.

Why? We have no Anti-Discrimination Act. It is sleeping in Congress because of the inclusion of the words “gender equality” in the process of legislation. It alarmed some conservatives that this might be a precedent to same-sex marriage. It is because of that fear to see men marry men and women marry women that there is no law to protect the LGBT community from hate crimes.

According to the UP Department of Psychology, only eight cities and two provinces have passed local anti-discrimination ordinances that specifically mention “gender orientation and sexual identity.” It means that 82.8 million Filipinos live in areas without protection against gender discrimination.

The Laude murder case is of national interest mainly because it highlights the important discourse about the intricacies of the Visiting Forces Agreement, and whether the treaty benefits or undermines the interest of the Filipino.

But for the LGBT community, the killing of Jennifer Laude highlights another important issue — is the law equal to them? Julita Cabillan faced the media yesterday, uttering inarticulate words from a mother’s painful loss — that which can never be fathomed nor repaid. “Bakit ganun? Lumabas naman talaga doon sa tanong sa doktor na ang ikinamatay ni Ganda dahil sa pagkalunod,” (Why is it like that? It showed in the questioning of the doctor that Ganda died of drowning), Julita tearfully said.

But it is what the court said that ultimately mattered. Ganda was once a man, and for that, her murder is a lesser crime.

LGBT Pride

About the Author:

Ephraim Aguilar is the Culture Editor of SubSelfie.com. He is an Executive Producer for CNN Philippines. He handles the daily newscast Balitaan Kasama si Pinky Webb. Ephraim used to be an executive producer for GMA Network and a correspondent for the Philippine Daily Inquirer. He is a vegan and an aspiring singer-songwriter. Journalism 2006, Bicol University. Read more of his articles here.