When sexual assault is threatened, how do courts view self-defense?

Rape survivors must prove a lack of consent, but the bar is even higher for women who fight off potential attackers

Charmaine Pfender in December 2015 with a service dog she trained in prison.
Courtesy Charmaine Pfender

Charmaine Pfender has spent nearly two-thirds of her life behind bars. Now 50, she has short dark hair streaked with silver. Sitting in the visiting room of the prison in Cambridge Springs, Pennsylvania, she spoke slowly with a hint of a drawl as she talked about the three nights one August that transformed her life.

In 1984, Pfender, then 18, had dropped out of high school but still dreamed of becoming a police officer. On Aug. 5, she and her friend Sara Mae Richardson were enjoying a Sunday evening at Pittsburgh’s Point Park when they met Engin Aydin and Suat Erdogan, 24-year-old exchange students from Turkey. “Engin was funny. He was outgoing, energetic,” Pfender recalled. By contrast, Erdogan seemed more reserved and had difficulty with English, often relying on his friend to translate. Pfender and Richardson were fascinated by their descriptions of life in Turkey. When the men invited them on a date, they accepted. That decision would leave one of the men dead and both women imprisoned with life sentences.

The four went to a bar that Monday, and the women agreed to see Aydin and Erdogan again the following night. They all met up on Tuesday evening after softball practice, and the women wanted to stop at Pfender’s grandmother’s house to shower and change clothes before their date. The men agreed, and everybody piled into Richardson’s yellow hatchback for the 20-minute drive.

That’s when accounts diverge. According to Pfender, Richardson and Erdogan sat in the front. At Aydin’s suggestion, they stopped on an isolated dirt road. Erdogan and Richardson began kissing; in the back, Pfender fought off Aydin. He shoved his hand down her shirt, and she pushed him away. Then, she said, he pulled a knife and “told me that I wasn’t going to tease him no more.” Earlier that day, Richardson, who had been shooting and hunting since she was 15, borrowed her stepfather’s gun to teach Pfender how to shoot. It was stashed under the driver’s seat. When Aydin brandished a knife, Pfender grabbed the gun and ran out of the car, slamming the door on his legs when he tried to follow. She fired a warning shot. When he continued toward her, she fatally shot him. Erdogan then tried to escape, and she shot him in the shoulder. Richardson’s trial testimony corroborated this version.

Erdogan’s story was very different. According to his trial testimony, both men sat in the backseat, and they pulled over because Pfender needed to relieve herself. After returning to the car, she “suddenly turned back to us, [and] she had a gun.” As she trained the gun on him, Richardson tied his hands behind his back and forced him out of the car. He then heard but did not see a struggle behind him. He started to run, and Pfender shot him in the shoulder. He fell, and she pointed the gun at his head and fired again. The bullet missed, and she left him lying on the ground. He escaped and continued walking until he lost consciousness. When he woke the next morning, he flagged down a passing motorcyclist, who took him to a police station.

Pfender said she has always regretted what she and Richardson did after they realized Aydin was dead. “I was terrified,” she said. “I couldn’t even complete full sentences.” Using a tire iron and boards they found, the women dug a makeshift grave and buried Aydin. “I wish I wouldn’t have done that,” Pfender said. “He didn’t deserve that.”

The women then drove to Pfender’s mother’s house, where they spent the night. The next afternoon, they went to stay with Richardson’s sister in Virginia Beach, Virginia. Two days later, they turned themselves in and were taken back to Pittsburgh.

The court of public opinion

Pfender with her mother, Donna Hill, in 2015.
Courtesy Donna Hill

In the days that followed, the press latched onto the idea that the pair belonged to an anti-male cult. “Man-haters?” blasted The Pittsburgh Post-Gazette. The Associated Press wrote that, according to Pfender’s sister Gloria Pfender, the women were “lesbian lovers who had harassed men and ‘gone violent’ against some of them.” (Gloria Pfender later denied making such a statement; she declined to speak with Al Jazeera.) Even before the trial began, the coverage resulted in a general disbelief that Charmaine Pfender defended herself against a threatened rape. During jury selection, many of the potential jurors admitted to having read or heard media coverage. Several remembered that the women were labeled man haters; some admitted that they already believed the women were guilty. All but one of the jurors who were ultimately seated had heard or read about the case. The judge nevertheless denied two requests for a change of venue.

In March 1985, after a weeklong trial in which the women pleaded not guilty and claimed self-defense, the jurors sided with Erdogan, convicting Pfender and Richardson of first-degree murder. Both women were sentenced to life in prison without parole.

There is little information available about how many people have been imprisoned for defending themselves against sexual violence. No agency tracks claims of self-defense and incarceration. Moreover, “there’s a long history of rape victims being the ones on trial,” said Kimberle Crenshaw, a law professor at UCLA and Columbia Law School. In court, rape survivors must prove a lack of consent, which is often determined by how sympathetic they appear to jurors. Those facing prosecution after defending themselves face a double burden, as they must also prove an imminent fear of harm. “The only thing worse than not being able to prove being sexually assaulted is not being able to prove self-defense and that you were sexually assaulted," Crenshaw said. "There needs to be greater efforts to contextualize … how the person understood both the threat and their options.”

Trial attorney Michael Dowd knows the importance of context in women’s self-defense cases. Since 1979, he has been representing domestic violence survivors who have killed their batterers. In his experience, mounting a defense in these kinds of cases depends on walking the jury through the survivor’s experience of violence, including utilizing expert testimony to contextualize her perceptions and explain why she used what might otherwise be considered a disproportionate amount of force. This can be done, he said, but it’s expensive, and “it’s particularly difficult to prove intent.” Moreover, he said, defendants who can’t afford an attorney are often given court-appointed attorneys who “may not know what the right questions are or what information to be looking for.”

While the law is purportedly gender neutral, it doesn’t take into account the realities of self-defense. In many cases, Dowd said, women are “often at a disadvantage in terms of size, skills, ability and strength. It requires them to grab hold of whatever’s available to defend themselves, but the law doesn’t take that into consideration.” According to Crenshaw, claims of self-defense by women are less readily believed. A primary reason for this, she said, is that a defendant’s credibility “turns on who they’re interpreted to be.”

It appears that juries are often likely to view those who fight back not as victims but as aggressors.

Pfender has never denied shooting Aydin, but she had to prove that she acted out of self-preservation. In her case, the judge instructed the jurors that they could find Pfender guilty if they were “satisfied beyond a reasonable doubt that the defendant knew that she could avoid the necessity of using deadly force with complete safety by retreating from the scene and from the presence of Engin Aydin.” In other words, the burden was on Pfender’s defense team to prove that she had no way to safely retreat from Aydin.

No one knows how many women have been convicted under similar scenarios. What is known is that women seem to make up a minority of people arrested for or convicted of violent crimes. A 1999 report by the Department of Justice found that women accounted for 17 percent of arrests for violent offenses. Of those, 11 percent — fewer than 2,000 — were arrested for murder. The overwhelming majority of victims were acquainted with the women convicted and were often intimate partners or family members. What these statistics omit are the circumstances and reasons behind these killings, including how many women arrested or sentenced claimed self-defense.

As of December 2014, women made up nearly 14 percent (about 10,300) of state prisoners convicted of murder or manslaughter and 8.5 percent (about 7,800) of those convicted of nonsexual assault. The report does not elaborate on the circumstances of the crimes and the relationships between the women and their victims. Some of these women may have claimed self-defense and lost. In court, Crenshaw said, these verdicts often boil down to whether the victim is seen “as a legitimate agent exercising extraordinary violence in response to extraordinary violence enacted on them.” It appears that juries are often likely to view those who fight back not as victims but as aggressors.

Prelude to a crime

Cambridge Springs, the Pennsylvania prison where Pfender is serving a life sentence.

Pfender hadn't wanted to go out that Tuesday night. The first date was terrible. Although both women were underage, Aydin suggested going to a bar. After the first round of beers arrived, they split into pairs — Richardson and Erdogan at one table, Pfender and Aydin at another.

Aydin began kissing Pfender. “It was a rough kiss,” she said. “I told him, no, I didn’t want that.” After pushing him away, she went downstairs to use the bar’s bathroom. When she emerged, Aydin was waiting outside the door. He began kissing her, and she again pushed him away, telling him no. He responded by punching a wall.

Back at the table, he seemed contrite. “He was putting his head down,” she recalled. “He put his hands up and said I didn’t like him.” Feeling bad, Pfender let him put his arms around her and kiss her. But again he turned aggressive, and again she pushed him away. That became the night’s pattern. She tried to end the date, but Richardson persuaded her to stay. Later, as they walked to Richardson’s car, Aydin pulled Pfender into the bushes and began groping her. “Each time got more out of control with him,” she said.

When they said goodbye, Pfender had no intention of seeing Aydin again. But Richardson already made plans with Erdogan and wanted Aydin along to translate. “She couldn’t really understand Suat. He spoke very broken English,” Pfender explained. “She kept pushing and pushing until I relented.” Thirty-one years later, she reflected on that decision with an unfortunate choice of words. “I wish I would have stuck to my guns.” 

Her word against his

Pfender and Richardson are two white women whom police, prosecutors and jurors did not see as credible. Women further marginalized by race, sexuality or gender identity often face even more hostile scrutiny in cases of self-defense. Two decades after Pfender’s conviction, Patreese Johnson and her friends learned this firsthand.

On Aug. 18, 2006, she and six friends took the train into New York City’s West Village. “We were just planning to come out, go to the pier, have a good time, meet some girls,” recalled Johnson, then a 19-year-old high school student expecting to graduate that fall. For them, the Village was a mecca for gay youths. None imagined that their outing would start with an attack and end with handcuffs.

Six months earlier, Johnson was jumped outside a New Jersey club. When she told police, they refused to act and told her she shouldn’t have been out late at night. After that, she began carrying a small kitchen knife in her purse.

That night, they encountered Dwayne Buckle sitting on a fire hydrant outside the IFC movie theater on Sixth Avenue. “He said, ‘Give me some of that,’” Johnson recalled, and he pointed at her crotch. She replied that she was a lesbian; her friends joined in, joking that they were all romantically involved. This response seemed to enrage him, she said, and he began shouting and threatening, “I’ll fuck you straight.’”

Patreese Johnson in New York City in November 2015.
Victoria Law

At first, she didn’t sense a physical threat. “I thought he was being an asshole,” she recounted. She and her friends were already walking away when he spat and threw his cigarette at them. She did not see the start of the attack. “By the time I turned around, he had Renata [Hill] on the ground,” she recalled. Two of her friends tried to pull him off; he punched one of them in the face. Johnson said Buckle then attacked the group of women.

“Each time [we tried to escape], he came after us,” recalled Hill, then a 24-year-old single mother. On their final attempt, they were about 5 feet from Buckle when they saw him pick up something. “I wasn’t sure what it was — if he was pulling a gun out of his bag or what.” In that moment, Hill decided that she needed to get Buckle on the ground in order to safely get away from him.

But when Buckle wrapped his hands around Hill’s throat, Johnson pulled the knife from her bag and swung it at him. To this day, she said, she does not know whether her knife made contact with him. Two male strangers intervened, pinned Buckle to the ground and allowed her and her friends to get away.

The women were around the corner when the police arrived. Johnson recalled that a man grabbed her from behind, threw her against a car and yelled, “That’s the stabber!” (That man, Sylvester Loftin, later testified against her at trial, though he admitted that he did not see the fight begin.) They were lined up on the sidewalk as witnesses came forward to identify them as the aggressors. Then they were arrested and later charged with attempted murder, assault and, because more than two people were involved, gang assault. Meanwhile, Buckle was taken to the hospital and treated for knife wounds to the stomach and liver. He was discharged after four days. Footage from the IFC’s surveillance cameras showed Buckle lunging at Hill, ripping the dreadlocks from another woman’s head and choking a third woman, but he was never arrested or charged.

‘When you plea, you’re saying you were wrong. I had the right to defend my body. I had the right to defend my friend’s body.’

Patreese Johnson

At trial, Buckle testified that he simply said hello to one of the women and that in response, they “just started to dog me out,” saying his sneakers were cheap and that he looked homeless. He admitted to calling one an elephant, telling another she looked like a man and spitting on the women, but he denied attacking them — and claimed they came after him without provocation.

Rather than describe the women as victims of harassment, homophobia or street violence, the media came to its own conclusions. In the days after their arrest and again when their trial commenced, what Johnson claims was a clear-cut case of self-defense was spun into something different. “‘I’m a man!’ lesbian growled during a fight,” screamed one headline. Other news outlets labeled the women a “lesbian wolf pack” and described Buckle as an “admirer.” “When the media can so quickly come to that conclusion,” Crenshaw said, “it means they have preconceived notions of who these women are.”

Three of the women accepted plea bargains, but four — including Johnson — refused and went to trial. “I didn’t feel like I was wrong,” she said. “When you plea, you’re saying you were wrong. I had the right to defend my body. I had the right to defend my friend’s body.” She expected an acquittal, but she was convicted of assault and gang assault on the basis of the surveillance camera footage. “You saw that these women left, then there was a lull, and then they returned,” a juror told Al Jazeera America about the decision. “At that point, they consciously decided to come back. They didn’t have to return, but they did.”

Johnson was sentenced to 11 years in prison; Hill was sentenced to eight. After an appeal, Johnson’s sentence was reduced to eight years and Hill’s to three and a half. Hill was paroled in April 2010 and Johnson in August 2013. More than nine years after the incident, sitting in a diner across the street from the theater, Johnson reflected, “We was attacked for being lesbians, for being gay and because we stood up and didn’t let him degrade us.” She often wonders what would have happened had she been alone. “If I was by myself … I could have been dead or raped.”  

Who gets to be a victim?

Even when presented with proof of sexual assault, police and prosecutors frequently doubt self-defense claims.

In 2011, Ky Peterson, a black trans man, was attacked in a trailer park in Americus, Georgia. By the age of 20, he had endured several physical and sexual assaults because of his gender identity. After the first rape, he began carrying a gun in his backpack. On Oct. 28, he was sitting outside a convenience store when a man approached and began asking questions. “He stood over me and tried to sit with me, which made me leave,” he wrote in a letter to Al Jazeera. He was walking through the trailer park when something hit him in the back of the head.

He awoke in a trailer with the man naked and on top of him. Peterson says he screamed and struck the attacker, who hit him back. A few minutes later, Peterson’s brothers heard his screams and pulled the man off him. But the stranger continued to come after him. As the man charged, Peterson pulled the gun from his backpack and fatally shot him.

‘I feel like the police, clinic, jail and court system didn’t want to believe that I was attacked because of how I looked.’

Ky Peterson

The next morning, police arrived at Peterson’s trailer. He was taken to a precinct station and questioned for hours. Finally, he was taken to a clinic for a rape exam. “The lady who did [the] rape kit told me that I didn’t look like a victim,” he recalled. The test confirmed that Peterson recently endured forceful vaginal and anal penetration. An autopsy showed that his DNA was on his attacker’s penis. Still, Peterson spent the next year in jail, charged with armed robbery, aggravated assault and malice murder, a Georgia-specific charge for a homicide committed with expressed or inferred intent to kill.

“I feel like the police, clinic, jail and court system didn’t want to believe that I was attacked because of how I looked,” Peterson wrote. “They had DNA, but in their minds, I had to be punished for not being the typical sexual assault victim.” Possibly facing a life sentence or the death penalty if he went to trial, Peterson, at the urging of his attorney, chose not to take the chance. He pleaded guilty to involuntary manslaughter in August 2012. He was sentenced to 20 years, 15 of which must be served in prison. 

Pfender turned 50 this month. She has spent more years in prison than she has in the outside world. She and Richardson are in the state prison in Cambridge Springs, two hours north of Pittsburgh. Erdogan’s whereabouts are currently unknown. Though the Supreme Court recently ruled that juveniles sentenced to life without parole are eligible for resentencing, Pfender was one year too old to qualify. In order for Pfender to win her freedom, as her friends and family are attempting to do, they need to find Erdogan and have him recant his testimony. Given that over 30 years have passed, this will not be an easy feat. Yet her family and friends are holding out hope and have hired a private investigator to locate him. Pfender is remorseful but still insists that she acted in self-defense. If she could speak to Erdogan now, she would apologize but also say, “It’s time now to tell people what really happened.”

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