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transfeminism:

OK, so I kind of liked this analogy, until I came across the following use of a similar analogy in The New York State Reporter, a book of New York State court decisions published in 1894.

At common law, if a person intended to steal an article take it with the the owner’s consent, it is not larceny. … In such a case the completed act, accomplished as intended, not being a crime, none of the steps taken being ingredients of the offense, would constitute a crime, and the taker could not be convicted of an attempt to commit the crime of larceny.

If an assault should be made on a man dressed as a woman with the intent to ravish, the assailant believing the person assaulted to be a woman, he could not be convicted of an attempt to ravish, because in such a case the commission of the crime of rape would be an impossibility. So in the case at bar, it was a legal impossibility to commit the crime of extortion as against the woman Ames, because she inveigled the defendant to commit the act and was not in fear by him. [Emphasis added.]

In the case of The People v. Gardiner, Catherine Ames, who ran a “house of prostitution,” was coerced by Charles W. Gardiner, who threatened to have her prosecuted, to pay him $150. The court ruled that it was a “legal impossibility” for Gardiner to extorted money from Ames, claiming that she was not in fear.

While not exactly the same as the “mugging” dialog above, the two cases have significant parallels. Both coerce someone to give the other person their money, main difference is the one uses the threat of a gun and the other uses the threat of criminal prosecution. While the hypothetical mugging is used as a rape analogy, in the real life case of The People v. Gardiner the court itself makes an analogy to rape.

Only in real life case, the attempted rape of a trans woman or male cross-dresser is actually deemed an “impossibility,” and is not recognized by the court as a crime. Moreover, in a clear case of “victim-blaming,” it is suggested that trans women and cross-dresser actually “inveigled” their assailants to attack them.

While this may be a case from the nineteenth century, this view of the “impossibility” of rape of trans women is still predominant in our society.

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