Legally Bi: “The Staircase” Tells The Story of Anti-Bi Bias in Our Courts

8/25/2018

Michael Peterson in “The Staircase”

I am not a movie reviewer, and this is not exactly a Unicorn Scale review. I leave real movie reviews to my brilliant friends at bi.org whose every Unicorn Scale column is a must-read.

This is, however, a column that happens to be inspired by a Netflix documentary series that provided a no-filter insider’s view of a bi man’s horrible treatment by the criminal justice system.

I didn’t have a Legally Bi column in mind when I sat down to Netflix chill over The Staircase, a documentary that follows the intricacies of the story of Michael Peterson (the bi man accused of murder) and his defense team. The Staircase soon had me reeling from the series’ gripping portrayal of the dangerous role biphobia can play in our justice system.

There are SPOILERS galore in this column (in addition to the most important one I just spilled, sorry!), so if you must, stop reading after this sentence, bookmark this piece and come back to it after watching The Staircase on your own. Whether you choose to read on, or to dive into The Staircase yourself first, it is my hope you will at least ponder the issue for, say, at least eight minutes. One minute for every year that a bi man spent in jail for a murder he quite possibly didn’t commit and a conviction caused by a number of factors other than valid evidence, and perhaps, more than anything, because of the biphobia of the prosecutors and the jury.

The Staircase opens with the image of Kathleen Peterson, a North Carolinian business executive, who lay dying at the bottom of a staircase in her sprawling mansion that she shared with her husband and family, and the weeping, desperate voice of her husband begging a 911 operator to send help. As The Staircase depicts the moments of Kathleen’s death, the central question of the mystery becomes clear: was Kathleen the victim of a freak accident that left an unbelievable amount of lacerations and blood for just a fall down a staircase, or had she in fact been killed by someone (someone who, it was quickly assumed, must be her husband, Michael Peterson)?

One episode in, I wasn’t terribly emotionally invested, but the second episode jolted me out of my complacency. In a rather sensationalist style, that momentarily made me furious at the filmmakers and almost drove me to stop watching the show, Episode Two, titled “Secrets and Lies,” added a shocking (shocking!) twist to the unfolding plot. The husband accused of murder, up until then a sympathetic character, was all of a sudden cast under a cloud of suspicion, when it was revealed that he had led a secret life of … wait for it… no!… yes!… you guessed it!… BISEXUALITY.

Many of you will probably understand why I almost stopped watching The Staircase at that point. The vulnerable biphobia-weary side of me just didn’t want to deal. But the lawyer in me, recognized that there was something too important about what was unfolding to stop watching. And so I stuck it out for another eleven and a half episodes, and it was exquisitely painful at moments, but I’m glad I did.

Because in the end, it wasn’t the documentary filmmakers being sensationalistic. Rather, their work perfectly captured the nightmare of how biphobia can be infused into the criminal justice system, even potentially leading to wrongful murder convictions.

Michael Peterson, according to those who knew him and his wife well, had an “idyllic” marriage and loving partnership with his wife. Michael also had strong, warm relationships with his other immediate family members, who rallied to his support in the face of the prosecutor’s initial feverish insistence that he must have murdered his wife (despite lack of motive or hard evidence).

While initially supporting him, his sisters-in-law and stepdaughter reversed course upon finding out Michael’s “shocking secret”: that he was bi. Even worse (in their minds), he acted on it by watching porn and corresponding with a male escort. Which, no joke, meant he must have murdered his wife.  That was the prosecution’s argument that helped persuade the jury to convict Michael, but first, persuaded his wife’s family to turn against him.

“I don’t know who he is anymore,” exclaimed his sister-in-law, convinced that if Michael was bi, he must have led a hidden life, which meant, naturally, he was also capable of… murder?

His stepdaughter similarly explained that she stopped believing in his innocence when she found out he was bi: “his bisexuality cancelled out all the trust I had in him.”

The question is posed: “Does contacting a prostitute of the same sex make you a murderer?”  It sure does, the prosecutor argued in a “motion in limine” (motion to exclude evidence) hearing in which Michael’s lawyer David Rudolf unsuccessfully implored the judge to exclude, as dangerously prejudicial, any evidence of Michael’s bisexuality.  “It goes to motive,” the prosecutor convinced the judge.  The rationale offered and accepted by the judge to allow Michael’s bisexuality to become a front and center piece of evidence in his murder trial was that Michael couldn’t possibly have actually had an idyllic marriage with his wife if he had been bi. And since a bi man who went so far as to watch porn and plan a date with a male escort presumptively couldn’t have an idyllic marriage, that would make him a valid murder suspect.

This, despite Michael movingly describing (but not on the stand; his lawyer feared that the “character issue” would destroy him if he testified) how his wife knew about and accepted his bisexuality, that they were soulmates, and that his bisexuality did not make his marriage any less strong, loving, and, yes, idyllic.

But the prosecutor, judge, and ultimately, jury, didn’t buy it. Nor did the media commentators on the news, who informed their viewing audiences that

“Bisexuality… what it does is show the jury that this was not a happy marriage.  In fact, it is far from a happy marriage when you are attempting to pay for sex with a hooker, so this idyllic relationship that Mr. Rudolph (the defense lawyer) portrays is simply not true.”

Even the male escort with whom Michael had an email exchange about a date (which never came to fruition), upon being dragged onto the stand, himself attested to Michael’s strong and loving relationship with his wife. The escort explained that most of his clients were married men whose wives knew about their sexuality. In Michael’s case, the escort testified his love for his wife was particularly apparent, with Michael conveying to him in their email exchange that he and his wife had a warm relationship and nothing would ever destroy it.

Impossible, insisted the prosecutor, who in a biphobic masterpiece of a closing argument, drawled indignantly to the jury,

“Do you REALLY believe that Kathleen Peterson knew her husband was bisexual?  Does that make common sense to you?  That it was ok with her?.. she couldn’t have approved.  That’s not the way that soul mates conduct themselves.”

Now, if you’re like many people, not just bi people, but loving people of all stripes who have open, communicative, trusting, nontraditional (whatever that really means) relationships, you’re calling bullshit. We know, don’t we, that people can have strong soulmate connections with each other even if they are people who watch porn or otherwise explore sexuality in unconventional ways? Some of us get that, anyway, if not enough of us.  There are infinite ways to love and to be soulmates.  Why should repressive 2003 southern conservative values determine whether someone lives a free life or is locked up for life for asserting a supposedly unbelievable claim to be both actively bisexual and happily married?

Why? Because that’s the way Michael Peterson’s prosecutors and jury, who held Michael Peterson’s life in their hands, viewed things. My fear is that dangerous infusion of biphobia into determinations of guilt and innocence occurred not just because the trial took place in 2003 (the year sodomy bans were finally declared unconstitutional in Lawrence v Texas) and in North Carolina. Rather, this very scenario can, and does, play out across the country to this day.  Gay people are sentenced to death because of their sexual orientation, bi people are killed for their sexual orientation, bisexuality remains the sexual orientation that too often dares not speak its name, so why should we assume that what happened to Michael Peterson can’t happen to other bi people?

Years after his conviction, after other prosecutorial shenanigans including extensive evidence tainting were exposed, the now-elderly Michael, after serving eight years in prison, was released and given a choice between going through a multi-year trial all over again or taking a plea. Having lost all faith in the justice system, after fifteen years of fighting Michael accepted a compromise “Alford plea”  – technically, a guilty plea, but one in which the pleading party still maintains innocence while accepting being condemned as a criminal for life.

Lest there be any doubt that biphobia played a primary role in Michael Peterson’s murder conviction, the last few moments of The Staircase are simultaneously validating and horrifying: the judge in the case expressed deep regrets about how he had run the trial, and said that he never should have let in evidence about Michael’s bisexuality, which clearly turned the jury against him. Without that and other inflammatory evidence, the judge said, he could have seen a reasonable jury coming to a “not guilty” verdict.

In the end, it remains unclear how Kathleen Peterson died.  (I’m quite seriously leaning toward “the owl did it!” theory). But it is quite clear that biphobia was used as a weapon against Michael Peterson by the criminal justice system, and biphobia played no small role in his murder conviction.  And without any reasonable doubt, too many people in this tragic story equated bisexuality with the inability to have a happy marriage.

So that’s how a chill night with Netflix left me wrestling with the frightening reality of the life-destroying biphobia within the criminal justice system, portrayed so disturbingly in The Staircase.

Bi activists are often asked why they bother, why is it especially important to advocate for positive bi representation and bi visibility. The Staircase reminds us why. There are so many horrible stereotypes about bi people that are still accepted by society. When the prices of such biases and misconceptions are being wrongfully convicted and locked up for life (or worse), the dire need to address anti-bi bias in the legal system could not be more clear.

Nancy Marcus
Nancy Marcus is an out bi lawyer and LGBT rights activist. She is a co-founder of BiLaw, the national organization for bi lawyers, law professors, law students, and their allies, and is the author of "Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation," published by the University of Michigan Law School's Journal of Gender and Law.