Commentary on the Littleton Case

How the "Hardberger Decision" 
Could Be Applied to the Texas Penal Code

Tere Prasse, Paralegal

Sexual Assault Cases
Homosexual Conduct

Sexual Assault -- 

Texas Penal Code 22.011

"(a) A person commits an offense if the person: (1) intentionally or knowingly: (A) causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent;"

Section 22.011 of the Texas Penal Code precisely specifies the "female sexual organ" as applicable to cases of sexual assault or more commonly known as rape of women.  Using the dangerous precedent of the Texas 4th Court of Appeals ruling in the Littleton case, and specifically Chief Justice Hardberger's opinion that a person's chromosome configuration alone equates to the person's sex in the legal arena, criminal defense attorneys are virtually obligated to pursue chromosome tests of female rape victims in the hope that their chromosomes are not XX (the only chromosome pattern recognized in the "Hardberger decision" as "female"). We can only wonder how the judiciary will handle this invasive legal defense tactic, notwithstanding privacy laws.

Does everyone think only male to female transsexuals will be affected?  By the literal letter of the "Hardberger decision," approximately 900,000 women in Texas could be directly affected, and even more internationally should other courts buy into the "Hardberger precedent." In the Littleton case, it was openly acknowledged that Christie Lee Littleton had a functional female [appearing] sexual organ, but Chief Justice Hardberger cast the logic of appearance and sexual functionality aside, fundamentally ruling that she was not "female" and thus by extrapolation of the ruling cannot have a "female sexual organ." Women with AIS also have a female appearing sexual organ, and they have an XY chromosome pattern -- a naturally occurring medical condition. This is only the tip of the genotypical sex variation iceberg presently known to medical science, floating squarely in the path of the legal Titanic.

This whole discussion to a rational person sounds positively Orwellian and an incredible, unbelievable miscarriage of justice should the "Hardberger decision" be applied in the criminal legal arena. But as we have seen before in law when judges clutch at minute legal straws to support their personal biases and prejudices, stranger things have happened and continue to happen when the legal system goes awry. Law unfortunately does not always equate to most people's sense of justice and morality.

Not only was Christie Lee Littleton stripped of her marriage and human dignity by the 4th Court of Appeals, but in a "Hardberger thinking" criminal court, she can be legally raped.

Homosexual Conduct -- 

Texas Penal Code 21.06

"Homosexual Conduct. (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."

When Chief Justice Hardberger of the Texas 4th Court of Appeals ruled that Christie Lee Littleton was a "male" and invalidated her 7-year marriage, he also unwittingly criminalized her long-term relationship with Jonathon Mark Littleton.  Christie Lee openly stated that she had consummated her marriage, and because of the "Hardberger ruling" that her marriage was "same-sex," she had technically "confessed" to a criminal act under the Texas Penal Code 21.06 -- her crime being "homosexual conduct."

Had not the statute of limitations already expired at the time of the 4th Court's ruling, the Bexar County District Attorney would have had a potential prosecutorial case (despite Christie having a very strong affirmative defense). Imagine though for a brief moment, a DA with the same narrow and biased perspectives -- in a case such as Christie Lee's where the statute of limitations had not expired, it is entirely within the realm of possibility that such a criminal case could be brought to trial (or an indictment at least sought).

The crime is only a misdemeanor, but it's the unreal public assault on a person's dignity and right to privacy that constitutes a "punishment" that goes far beyond the crime. Imagine the headlines in the media if a DA decided to pursue a case such as this. Again, most people would view this legal circus of a vaginaed person and penised person sexual relationship as incredibly non-sensical, but gay men and lesbians live under the criminalization onus of 21.06 every day of their lives in Texas. Now with the "Hardberger decision" all sexual relationships in Texas between two people who have other than an XX/XY chromosome pairing are equally criminalized.

It makes one wonder when legalized persecution of minority classes will stop in "civilized" society.

[Legal Addendum: In 1993, the Texas 3rd Court of Appeals found 21.06 unconstitutional, and the Texas Supreme Court and Texas Court of Criminal Appeals played political hot potato with the issue, allowing the 3rd Court's decision to stand. Section 21.06, however, remained "on the books" to be used for discriminatory purposes -- and it has been used by the Texas Legislature repeatedly since 1993 as rationale for discriminatory legislation. In 2000, the Texas 14th Court of Appeals also found 21.06 unconstitutional and it remains to be seen what the higher courts do with the issue on certain appeal by the state of Texas. Please note that as long as the Texas Legislature leaves 21.06 in the Texas Penal Code, it can still be used for discriminatory purposes.]

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Last revised: Saturday, June 10, 2000 07:30 PM

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