WHEN A PROSTITUTE KILLS:
The Execution Of Aileen Carol Wuornos

By SHERRY F. COLB

Wednesday, Oct. 23, 2002

On October 9th, the State of Florida executed Aileen Carol Wuornos by lethal injection. Described in the media as a serial killer, a phrase that evokes such sadistic characters as Ted Bundy and Jeffrey Dahmer, Wuornos may in fact have been a serial victim.

Aileen Wuornos was a prostitute. Over a span of two years, the evidence showed, she killed at least six men whom she encountered as customers. Wuornos claimed initially that she had killed these johns after they assaulted or raped her. But she would have necessarily faced a significant obstacle before any jury, in offering claims of self-defense: the fact of her profession.

Why People Reject the Rape Claims of Prostitutes

Because she was a prostitute, Wuornos's rape accusations would strike many people as implausible. A prostitute is often viewed as willing to have sex indiscriminately with any stranger or acquaintance ready to pay. As such, people often conclude, a woman like that simply cannot be raped. Like a railroad obligated to serve all interested customers, the prostitute becomes a metaphorical common carrier, from whom anyone prepared to pay the price may demand service.

Under the law, however, at least on the books, a woman does not forfeit her right to bodily integrity by becoming a prostitute. No matter how regularly and under what circumstances she says yes, in other words, she never gives up her right to say no.

But the law in theory does not necessarily translate well into practice. To be a prostitute - in the eyes of customers, jurors, and our society more generally - is to hand over a blanket consent to sexual relations.

How Prostitutes' Plight Exposes the Precarious Nature of Rape Prosecutions Generally

Though the prostitute is an extreme case, her status reveals the precarious nature of a woman's right to protection from rape. Until a few decades ago, for example, most states refused to apply their rape laws - even in theory - to sexual assaults by men against their wives.

By choosing a man as a life-long partner, legislators reasoned, a wife gives herself over to her husband for sex at his pleasure. When that absolute sexual accessibility is coupled with a man's legal obligation to support his wife financially, the analogy to prostitution becomes difficult to escape.

While marital rape has become a crime in theory, it is in fact almost never prosecuted. Meanwhile, the promiscuity of an unmarried rape victim persists - to this day - in reducing substantially the odds of a criminal conviction. The man who rapes a non-virgin, for example, still faces a far more forgiving jury than the attacker who deflowers a virgin.

A Strange Twist in the Wuornos Case: Her Confession

So Aileen Wuornos could have expected little or nothing in the way of legal consequences for any man who raped her. And the man too might have predicted in advance that he could rape her with impunity.

Perhaps because of this knowledge, or maybe because of the nature or sheer number of men who frequent prostitutes, rape is an occupational hazard for women in the oldest profession. And for reasons outlined, its prosecution is about as uncommon as its occurrence is common.

In the Wuornos case, however, there is a twist. A few years ago, after being convicted and sentenced to death, Wuornos admitted that she had deliberately robbed and killed her victims.

If Wuornos really did deliberately rob and kill six or more innocent men, then she is no victim (unless one thinks that anybody executed by the State--no matter how heinous the crime and how clear-cut the evidence--is a victim). But what if she had been innocent?

What Would Have Happened Had There Been No Confession?

What if Wuornos--probably a guilty woman--was sentenced to die simply because of her profession? Imagine, in other words, a different version of the case as it might have unfolded had Wuornos not confessed. What would such a case tell us about how we, as a society, view prostitutes?

The jurors in our hypothetical almost-Wuornos case could have believed one of two things. They might have concluded that the victims never tried to rape the defendant in the first place. Or alternatively, they might have believed that even if the men did try to rape her, she implicitly accepted this treatment by failing to quit her job, as a reasonable person would have done. Either way, responsibility for whatever occurred would have rested squarely on the shoulders of the defendant.

Boys will be boys. The underlying assumption would be that even if the men did try to rape her, she - as a prostitute who, by hypothesis, had been raped before - had no right to kill them in self-defense. She had assumed the risk of rape by remaining a prostitute.

A Comparison Between Aileen Wuornos and Bernhard Goetz

For a useful comparison, consider the case of Bernhard Goetz. Goetz was mugged on a number of occasions and decided that he would get even. Because prior assailants had been members of minority groups, he decided to carry out his own informal sting operation on minorities as well.

Goetz took an unlicensed firearm, concealed it on his person, and boarded a subway car. He then deliberately sat near a group of young, African-American men who looked threatening to him. Saying nothing, Goetz waited for the men to pounce. They did, apparently attempting to rob him, and he responded with deadly force.

Goetz hated minorities and admitted having hoped for exactly the scenario that transpired. His one expressed regret was having only paralyzed one of the men and critically injured two others, rather than killing all four of them.

Bernhard Goetz was acquitted of all charges save for illegal possession of a firearm, which carried a one-year minimum sentence.

What makes Goetz's case similar to Wuornos's is that Aileen Carol Wuornos may well have hated men as much as Bernhard Goetz hated African-Americans. Like him, Wuornos could have felt unsafe and unable to conduct her life without fear. Both Goetz and (our hypothetical, non-confessing version of) Wuornos might have retreated from danger. But they chose instead to act in ways that provided further opportunities for assault. And in both cases, there were those who questioned why each of them insisted on asking for trouble in this way.

But that is where the similarity ends. Despite his explicit racial hatred and the questions that were legitimately raised about the necessity for his repeated firing at a man who was no longer assaulting him, Goetz was acquitted. Jurors gave him the benefit of the doubt - a benefit that the criminal law demands. Sitting near hostile people on the subway, they implicitly said, does not assume the risk of being mugged.

Wuornos, in contrast, died two weeks ago at the hands of the State. She, a prostitute, would probably not have received the benefit of the doubt even if she had never confessed. She did not become a heroine in the media, even for a short time, as the subway gunman had. Rather, she was consistently depicted as a heartless villain.

Why the Wuornos Case Remains Troubling

There are unlikely to be many tears shed for Aileen Carol Wuornos. And assuming her actual guilt, that is as it should be. But the case remains a troubling one.

That is because of the possibility that Wuornos never stood a chance of receiving a fair adjudication. She might have been convicted and sentenced to death, even if she had truly acted in self-defense.

Wuornos was at best a prostitute who refused to retreat from danger. For too many people, that is still not good enough for her to deserve the law's protection from rape.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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