Texas Jury Acquits Man For Killing Escort Who Wouldn’t Have Sex With Him

(UPDATE: Make sure to read the update at the end of the post, which puts a very different spin on the jury’s decision.)

From Vanity Fair:

Frago went outside where her driver, Christopher Perkins, was waiting. Gilbert came out and confronted Perkins, who told the enraged man that he had hired Frago for 30 minutes of her time, not sex, and that was what he had received. Perkins drove away, when suddenly Frago screamed, “He’s got a gun!”

Gilbert fired at the car four times. A bullet struck Frago at the base of the skull, paralyzing her. Months later, she died as the result of the shooting. Gilbert was charged with murder. He admitted that the basic facts I just recounted were true.

On Thursday, Gilbert was acquitted. The jury agreed with his argument that he was justified in shooting and killing Frago because she had stolen his property—as in, the $150 taken without providing him the sex he wanted. Never mind that Perkins—who was labeled as Frago’s pimp by the defense—testified in court that his escorts never promise sex. “If I found out you were having sex, you were fired. Period. End of discussion,” he said.

Nicole Flatow explains:

[Texas law allows] deadly force in protection of any piece of “tangible” or “movable” property.

The Texas provision authorizes deadly force not only to “retrieve stolen property at night” but also during “criminal mischief in the nighttime” and even to prevent someone who is fleeing immediately after a theft during the night or a burglary or robbery, so long as the individual “reasonably” thinks the property cannot be protected by other means.

1) Because property is the most precious thing there is, it makes sense to legalize shooting people in the back as they’re retreating. No reasonable person, upon being fooled by a couple of con artists, could be expected to understand that a human being’s life is worth more than $150.

2) From the Vanity Fair article:

Think of the possibilities. A guy buys some pot from a drug dealer, but it turns out to be oregano. If the drug dealer attempts to drive away—at night, of course—the purchaser can kill him. Or suppose someone buys something for what is advertised as the best price in town, later finds a lower one, goes back to the store manager, demands his money back, and is refused. Can the buyer then legally shoot the manager as he heads home that night? I don’t see why not—at least that transaction involved a dispute about a legal transaction, rather than the crime Gilbert wanted performed.

But of course, in those cases, the person being killed isn’t a sex worker. And I strongly suspect that for many juries, the life of a sex worker isn’t considered as valuable as the life of a store manager or even a drug dealer. (Certainly not as valuable as something really precious, like $150.)

3) So suppose that Gilbert had produced his gun, and as a result Frago had acquiesced to have sex with him. By my lights, that would be rape. Apparently this Texas jury would have considered that consumer protection. (Or is it that his actions would have been rape if she acquiesced to sex at gunpoint, but a justifiable and legal shooting if she had run away and been shot?)

4) Gilbert is exactly the sort of law-abiding person who makes us all safer because he’s armed, right?

Further notes:

Echidne:

Suppose an escort has sex with a client in Texas, and then the client refuses to pay. It’s after nightfall, they are in the escort’s house. Based on this acquittal, she has complete rights to kill her client dead, to retrieve her stolen property.

Based on this Vanity Fair article, my interpretation should work, because the law used in the case was all about the right to use guns. But I very much doubt that the jury would have acquitted an escort for the reverse crime.

Digby:

I eagerly await the gun nuts rushing to say that if only the hooker and her pimp had been armed, this wouldn’t have happened …

UPDATE: Brigette Dunlap has a good point about what the jury may have been thinking:

Per Texas’ homicide statute, the prosecution needed to prove that Gilbert “intentionally or knowingly” killed Frago or intended to cause her “serious bodily injury.” The defense argued that Gilbert lacked the requisite intent for murder because when he shot at the car as Frago and the owner of the escort service drove away, he was aiming for the tire. The bullet hit the tire and a fragment, “literally the size of your fingernail,” according to Defense Attorney Bobby Barrera, hit Frago.[…]

One would expect the jury to find that shooting at a car with an AK-47 is at least “reckless,” in which case he could have been convicted of manslaughter. But the prosecution didn’t charge him with manslaughter, only murder. Manslaughter is a “lesser included offense” of murder and the judge is entitled to instruct the jury if the evidence supports that charge, but it appears she did not. The jury can’t convict on a charge that isn’t before them.

If so, then it’s unfair to blame the jury, but entirely reasonable to ask why neither the prosecutor nor the judge put manslaughter on the table.

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36 Responses to Texas Jury Acquits Man For Killing Escort Who Wouldn’t Have Sex With Him

  1. 1
    Robert says:

    If so, then it’s unfair to blame the jury, but entirely reasonable to ask why neither the prosecutor nor the judge put manslaughter on the table.

    That’s easy; because she’s a whore, and they don’t care what happens to whores enough to put in a solid, cover-all-the-bases day’s work.

    Part of the problem is that everyone knows that Perkins is full of shit. People do not hire escorts to come chat for a half-hour; they hire them for sex. “We don’t sell sex” is part of a paper-thin legalistic defense that escorts use to give them just enough wriggle room to get out of a few arrests, now and then.

    So the jury is thinking, not “it’s unreasonable to shoot at someone for not fucking you” but “yeah, he was pissed because she basically robbed him of $150”. Even though most of them would probably agree with the first sentence.

    As far as I am concerned, Echidne is dead right. A client who fucks an escort and then doesn’t pay her has committed rape (probably) and robbery (definitely), and if the law says you can shoot someone for robbing you at night then she would be 110% in the right; I’d vote to acquit.

    I think I’d have had to vote to acquit in this one too, for the reason you cite at the end; there doesn’t seem to have been murderous intent, and the state fucked up its presentation of the case. I did not know that about manslaughter being an included sub-offense, and knowing it NOW I would lobby for that to be what we convicted him on.

    All that said – this dude has a life expectancy of about a week unless Frago was in the all-robbery all-the-time class of working girl. Escorts (as distinct from other classes of working girl) tend to have friends. Someone’s gonna cap him, and I’m not going to cry about it when it happens.

  2. 2
    Varusz says:

    “A client who fucks an escort and then doesn’t pay her has committed rape (probably) and robbery (definitely) …”

    I don’t think either one of those is true. If she consents to have sex, that’s not rape.

    As far as robbery goes, if I contract with you for a service, for instance to paint a wall, and you don’t do it to my satisfaction, it’s not robbery if I hold off paying you the full amount. It would at most be fraud if you had the intention beforehand of not paying. It doesn’t really justify one person shooting another.

  3. 3
    Robert says:

    She consented, conditional to X. If condition X is intentionally not met, then her consent was not legitimately obtained. See Nick Kiddle’s prior post (from years ago) about consenting to sex with a condom, then the guy ‘lost’ the condom, but attempted to continue. If he had succeeded, how is that not rape?

    The contractor example isn’t a valid comparison because in my example there is a deliberate intent to not pay, which is a necessary ingredient to theft but not to fraud. If you agree to pay to have the wall painted, but never intended to pay, then you have committed theft, not fraud. Fraud is different than theft.

  4. 4
    RonF says:

    Among the principles this country was founded on is the concept that our legal system will set individual rights above the rights of the State, and that the State has to get everything right – including the appropriate charges in a criminal case – to take away someone’s liberty. Better some guilty people go free than some innocent people go to jail. Sometimes the guilty people go free, and this is a case in point.

    This is why this country made a mistake a long time ago when the Law Department was renamed the Justice Department. A government can give you the law, but no human agency can give you justice 100% of the time.

  5. 5
    Varusz says:

    With regard to the rape thing, it sounds like consent is something that can be retroactively withdrawn if desired – if it is determined that preconditions are not met.

    Sally sleeps with Bill because he is able to convince her that he is rich. Later, she finds out that he doesn’t have much money and withdraws consent with the consequence of a 20-40 year sentence for Bill.

  6. 6
    alex says:

    Contracts for sex aren’t enforcible. If I sue someone for payment, the court won’t enforce this. Likewise if someone sues me for non-performance. So there is no legal right to the money or service – so failure to pay isn’t criminal.

    “She consented, conditional to X. If condition X is intentionally not met, then her consent was not legitimately obtained.”

    I think society should take deception and fraud much more seriously than it does – at the moment there is a buyer beware attitude. But I don’t that has much to do with consent. You consent to something if you have a choice and make it, it isn’t conditional.

  7. 7
    RonF says:

    Digby:

    I eagerly await the gun nuts rushing to say that if only the hooker and her pimp had been armed, this wouldn’t have happened …

    I don’t know too many people that would qualify as “gun nuts”, so I won’t speak for them. But I would propose that the vast majority of gun owners would understand that a similar principle applies here as the one I cited above. The 2nd Amendment basically says that the right to keep and bear arms is an essential liberty of the American people. As with other rights we have, they can be misused to the point that someone is seriously harmed or even killed. But the only way to ensure that a given right is never misused and that people are 100% safe from such misuse is for the government to take that liberty away. It is once again a balance between individual rights and government power. And we are so constituted as to push the balance towards individual rights.

    President Obama has just recently expressed this principle quite well in talking about the PRISM program when he said “You cannot have 100% security and 100% privacy and zero inconvenience … You know, we’re going to have to make some choices as a society.” In the case of guns, that choice was made when the States ratified the 2nd Amendment. In this case I would note that the Supreme Court has found a right to privacy in the Constitution, so it appears there’s a Constitution issue there as well. If the right to privacy can or cannot be compromised by the government in one case, what are the implications for its being able to compromise them in the other?

  8. 8
    Robert says:

    No. You’re wrong, stupidly so, and I’ve already explained why and don’t have the time to keep arguing with you about it. Consent can be and often is conditional, and deliberately failing to meet the condition negates the consent and may well end up changing the status of the underlying act.

  9. 9
    Hector_St_Clare says:

    Re: Part of the problem is that everyone knows that Perkins is full of shit. People do not hire escorts to come chat for a half-hour; they hire them for sex. “We don’t sell sex” is part of a paper-thin legalistic defense that escorts use to give them just enough wriggle room to get out of a few arrests, now and then.

    With all due respect, (and thank you for your support in the abortion thread) this is ridiculous. It doesn’t matter if there’s a social understanding about what an escort does (and actually, there are escorts that don’t have sex). *Legally*, an escort has no contractual obligation to have sex, which means he had no contractual right to his money back, and absolutely no right to shoot at her.

    (I think the idea of shooting someone over theft is revolting anyway, and I think the Texas law is horrendous, but even if you do believe it’s okay to shoot someone for thieving from you, in this case there was no legal basis for the sex, and therefore no theft.)

    And just to re-state, the fact that it’s legal in Texas to shoot someone who stole $150, is horrendous.

    Re: Escorts (as distinct from other classes of working girl) tend to have friends. Someone’s gonna cap him, and I’m not going to cry about it when it happens.

    Couldn’t happen to a nicer guy, if it does happen.

  10. 10
    alex says:

    Robert you are just ignorant – “Fuck me with a condom” is not a conditional sentence. You are confusing a condition with an adjunct prepositional phrase.

  11. 11
    gin-and-whiskey says:

    Robert says:
    June 8, 2013 at 1:33 pm
    She consented, conditional to X. If condition X is intentionally not met, then her consent was not legitimately obtained. See Nick Kiddle’s prior post (from years ago) about consenting to sex with a condom, then the guy ‘lost’ the condom, but attempted to continue. If he had succeeded, how is that not rape?

    Robert says:
    June 8, 2013 at 2:47 pm
    No. You’re wrong, stupidly so, and I’ve already explained why and don’t have the time to keep arguing with you about it. Consent can be and often is conditional, and deliberately failing to meet the condition negates the consent and may well end up changing the status of the underlying act.

    Dude. You are wrong. Stop insulting people.

    Specifically, you are confusing a precondition with a promise.

    A precondition is what it sounds like. I.e. “make sure you inject novocaine before you start drilling” or “you must wear a condom if you want to have sex with me; I don’t consent otherwise.” A bad filling or a condomless penetration could be, respectively, assault/rape.

    A promise like “I’ll pay you for that” is not a precondition. Whether it’s “I’ll pay you to have sex with me” or “I’ll pay you to paint my porch,” it is still not a precondition. Failure to fulfill a promise is a breach of contract and/or fraud. Sometimes it can even be classified as “theft of services.”

    But failure to fulfill a promise is not the same thing as proceeding to take an action when there is a specific precondition.

  12. 12
    mythago says:

    Dunlap is right in that we don’t actually know what the jury was thinking. Maybe they believed the guy just didn’t commit murder. Maybe they thought she was a whore and had it coming. Maybe they bought the ‘robbery’ defense. Absent a polling of jurors we can’t read minds.

    However, I don’t know that I buy her analysis of Texas law. We don’t have the case law interpreting the statute, which one would expect, and Dunlap doesn’t bother to cite to any – that’s pretty sloppy for a law professor. What springs immediately to my mind is that the phrase is “intentionally or knowingly cause the death of an individual”. If the car had crashed and Frago died as a result of his shooting out the tire, wouldn’t that have been murder? If you commit an intentional act that kills the victim in a way different than what you intended, is that not murder? I find it rather hard to believe that this has never come up in a Texas court before.

    WRT the murder/manslaughter charge, she doesn’t explain why the prosecutors did not charge him with murder. Perhaps they thought that they had a very strong case, and forcing the jury to choose between murder and acquittal meant that they would convict him of murder rather than let him walk – but I find it difficult to believe a prosecutor would do that, knowing that the defense would pull out the standard arguments in a murder case (summed up, as I recall, as “You have to prove that the victim needed killin’ and your guy was the man for the job”).

  13. 13
    Harlequin says:

    WRT the murder/manslaughter charge, she doesn’t explain why the prosecutors did not charge him with murder.

    The two times I served on a jury, it was the judge who instructed us about the lesser included charges–the prosecution didn’t have anything to do with it. Could be different in TX, though.

    (I’m assuming you meant manslaughter at the end there?)

  14. 14
    mythago says:

    Yep, sloppy editing on my part.

  15. 15
    Hector says:

    I’d be interested to see the composition of the jury by race, sex and economic class. I sort of think that might explain a lot.

  16. 16
    mythago says:

    In what way, Hector?

  17. 17
    Manju says:

    Well mythago, attorneys profile during selection, no? I mean, Hurricane Carter’s jury was all white, at least according to Bob Dylan. That might explain something.

    I don’t know what characteristics correlate to Sympathy for the John (maybe former NYS governors?) but I’m sure defense was looking for them.

  18. 18
    mythago says:

    I’m sure they were, just as I’m sure the prosecutors were looking for a hangin’ jury.

  19. 19
    Copyleft says:

    Her commission of fraud is no excuse for his commission of murder. Sex work needs to be legalized and regulated so situations like this can be prevented.

  20. 20
    Hector says:

    Copyleft,

    It’s not fraud, there was no legal obligation to have sex.

  21. 21
    nobody.really says:

    WRT the murder/manslaughter charge, she doesn’t explain why the prosecutors did not charge him with murder. Perhaps they thought that they had a very strong case, and forcing the jury to choose between murder and acquittal meant that they would convict him of murder rather than let him walk – but I find it difficult to believe a prosecutor would do that, knowing that the defense would pull out the standard arguments in a murder case (summed up, as I recall, as “You have to prove that the victim needed killin’ and your guy was the man for the job”).

    Eh – seems like a reasonable strategic move to me. Exhibit A: Look at all the furor this acquittal has triggered. But to evaluate the matter, we need to place ourselves inside the brain of the prosecutor, who is trying to place him(?)self inside the brains of the jury.

    What factors would weigh on the minds of the jurors? First, they would see a rather unsympathetic defendant – a guy trying to hire a prostitute, and then killing someone who refuses to have sex with him. Second, the jury would anticipate Exhibit A – all the opprobrium that will be directed at them if they would let this unsympathetic defendant walk.

    The prosecutor could anticipate how these factors would weigh on the jurors’ minds. Given this fact, the prosecutor made a reasonable calculation that the jury would rather vote to convict on murder than the let the guy walk. In this case, the prosecutor calculated wrong. It happens — but probably not a lot.

  22. 22
    Copyleft says:

    “It’s not fraud, there was no legal obligation to have sex.”

    There was fraud; just not the legally actionable kind, because sex work is still not recognized under the law. The spurned customer had every right to be angry at the bait-and-switch; what he DIDN’T have the right to do was get violent about it.

  23. 23
    Robert says:

    I’m wrong and I apologize, but I shouldn’t be wrong; one of the problems that sex workers have is that their work isn’t valid to contract for and so it is technically perfectly legal, in some sense, for their customers to do all kinds of shitty things.

    There’s indeed no legal obligation to have sex; there’s also no legal obligation to pay for the sex that you contracted-for-except-not-really and then had. The latter is a bigger problem because the sex worker is usually the more vulnerable person in the transaction, but sauce for the goose, sauce for the gander. It ought to be an enforceable contract (though to avoid truly ugly coercions something akin to a lemon law ought to let either party out of the transaction before it is executed; if both client and worker can change their minds, then the potential for abuse is much lessened.)

    The escorts that I know report robbery as a constant perceived risk but one that doesn’t actually occur with high frequency; I guess most clients either feel obliged to pay, or intend repeat business and thus want to be perceived as fair dealers, or fear repercussions from the friends and business associates of a robbed provider.

  24. 24
    Hector_St_Clare says:

    Re: There was fraud; just not the legally actionable kind

    I.e. there was no fraud, not in any sense that the law would recognize. Being ‘socially’ cheated out of what you think you expect, isn’t the same thing as fraud.

    Re: The spurned customer had every right to be angry at the bait-and-switch; what he DIDN’T have the right to do was get violent about it.

    I mean, you can get angry at whatever you want, but he had no claim of ‘theft’, since there was no legal contract for the sex. So his whole defence strategy should be invalid.

  25. 25
    Copyleft says:

    Hector, if there was no fraud then there was also no obligation for the client to pay her; and she took off with his money. Should that be considered ‘theft,’ or should we recognize that the legal definition is not the only definition when it comes to fraud? Those are your choices; either failure to deliver is wrong, or the client has no obligation to pay.

  26. 26
    mythago says:

    Copyleft, you’re missing the fact that he could, and did, legally pay her for her company; what he couldn’t pay her to do was put out. There is legally no fraud. If I pay you to clean my house and to assassinate Rodolfo the pool boy, and all you do is clean my house, I have no civil or criminal claim for “fraud”. There’s no fraud in “I paid you to do something we both knew was illegal and then you didn’t deliver.”

  27. 27
    Robert says:

    Yes, but then you run into a distinction which is often understood by juries but seems to be elided by lawyers. The people on the jury know that if Don Roberto gives you $100 for illegal Bill Murray porn, then you had better give Don Roberto $100 worth of illegal bill Murray porn or bad things are likely to happy to you. Every lawyer and judge and cop in the world can tell them, it is OK, there is no contract with Don Roberto, you may disregard anything he says.

    But the jury are not made up of damn fools, and when the court is no longer looking, Don Roberto will get his XXX-rated Caddyshack parodies. The members of the jury are likely to perceive a *moral* contract or a *you better or you’ll get your ass shot* contract even if there is no legally binding contract. They are probably more likely to do that in a sexist way, making excuses for a john who doesn’t pay but finding a reason why the working girl should have ‘done her job’, etc. – but in principal it’s going to cut both ways in all these deals.

    Fine, you can’t go to law to recover the money you lost in the heroin deal with Don Roberto. But if there’s some other case involving Don Roberto and the heroin deal, “that deal wasn’t valid and doesn’t count” is going to be really hard for a jury to truly instantiate in their minds and take as a reality when they are deciding outcomes. (This was the mistake I made earlier; in my view, if you offer someone money for sex and they offer the sex, you had god damn well better have and give the money. I don’t care what the court thinks. I know what Don Roberto thinks.)

  28. 28
    Sebastian says:

    I was not going to say this, because hoped that people who know more than me would say it, but no one is… Back at the Institute, I knew a couple of escorts. We spoke about what they were doing from time to time, and, at least as far as they shared, the deal for high end escort goes like this:

    The first payment really only gets you her company. Of course, 150 dollars for 30mn does not make sense. The girls I knew charged a lot more, but for far longer periods of time – they were usually (always, they said) hired for an evening or a weekend, and usually had to pretend to be the client’s date.

    The escort agency, supposedly, only takes a cut from that payment. Of course, the escort agency will claim that it only provides that part of the service.

    Once the girl and the client meet, or even earlier, they can come to additional arrangements. Goes without saying, the girls I knew both denied that they would ever come to such arrangements, and claimed that having sex with the clients without payment was something the other, “real” escorts would really frown upon. They said that clients who are looking for sex as part of the deal, usually try to clarify the terms before they actually meet the escort for the first time.

    Now, this was almost a decade ago, in Boston, and Texas may be very different, but I would think that the prosecutors would at least try to make the jury believe that what happened is that the murderer did not do his homework. Of course, the $150/30mn is a bit hard to swallow.

  29. 29
    mythago says:

    The members of the jury are likely to perceive a *moral* contract or a *you better or you’ll get your ass shot* contract even if there is no legally binding contract.

    Conversely, they may perceive it in exactly the opposite way: Fool, you paid for something illegal and you’re whining that you got tricked? It’s the same way that people roll their eyes at the guy who calls 911 because the pot he just bought turned out to be oregano.

    In any event, this wasn’t a fraud case and the jury wasn’t weighing fraud charges.

  30. 30
    Hector says:

    I don’t exactly, uh, patronize the escort or prostitute businesses, but my naive understanding is what Mythago and Sebastian said.

    I’d assume that by paying for an escort your paying for the chance to negotiate for sex, not necessarily for the sex per se. and if you do choose to pay for sex, which is illegal, then you sort of assume the risks involved. just like when you buy marijuana you’re assuming the risk it’s oregano.

  31. 31
    Copyleft says:

    Then until sex work is properly legalized and regulated, I suggest that all clients pay with counterfeit money. After all, they have no legal obligation here and surely that’s all that matters….

  32. 32
    Myca says:

    Then until sex work is properly legalized and regulated, I suggest that all clients pay with counterfeit money. After all, they have no legal obligation here and surely that’s all that matters….

    She was hired, and was paid, to provide a legal service. He shot at her because she did not provide the illegal service he wanted.

    —Myca

  33. 33
    Copyleft says:

    Her business is predicated on the illegal service you suggest she was entirely unaware of. Just because the law can’t touch her doesn’t mean she was dealing honestly (not that a violent response is ever appropriate).

  34. 34
    mythago says:

    Passing counterfeit money is illegal.

    We also have no idea if there was “fraud”, legally or morally. Gilbert hired an escort. Is there actual evidence that she agreed to provide sex for money? And please, no “duh, she’s an escort”. That’s like saying if I take a guy on a date and he doesn’t put out that’s fraud.

  35. 35
    Nancy Lebovitz says:

    http://slatestarcodex.com/2013/06/11/lies-damned-lies-and-facebook-part-3-of-%e2%88%9e/#comment-13887

    A California prosecutor goes over the law with considerable detail, and an admission that he might have missed something.

  36. 36
    Mandolin says:

    Copyleft — out of the thread. Thanks.