We hear the word assault and we automatically think of something negative. However, a Colorado man was recently charged with assault for trying to help someone.
How is that possible? Here’s what happened.
James Lowell Pennington was arrested in May after performing an unlicensed testicle removal surgery. Sounds bad, right? However, he did his work on a willing transgender woman in her apartment.
In other words, she asked for his help. She asked him to do it.
Back to the story: using an Army medical kit that had a scalpel, Lidocaine, and medical dressings, Pennington “used the scalpel and surgically disconnected and removed the victim’s [two] testicles and then sutured the opening back up.” The surgery took a total of 90 minutes, and when it was finished, Pennington told the woman to call 911 if any issues or complications arose.
When the victim’s wife tried to change the dressing a few hours later, “a large amount of blood poured out of the incision” and they called 911. Because they waited so long to call 911, the testicles couldn’t be reattached.
The transgender woman – who is identifying herself as Jane Doe – wrote a letter in which she says she is not a victim:
“I am not a victim of 57 year old James Lowell Pennington who is the suspect in this case. I am a victim of a society and healthcare system that focuses on trying to demonize transgender people and prevent us from getting the medical transition we need instead of trying to do what is best for us. Arranging a back-alley surgery was out of pure desperation due to a system that failed me…As long as this system continues in its present form there will continue to be events like this. Until this system is fixed and transgender people are encouraged and able to get the care we need, there will always be cases like me.”
This is an unfortunate situation for both the woman, who was desperate to have this surgery, and for Pennington, who wanted to help her, and it begs the question: if the woman doesn’t consider herself a victim, then why was Pennington arrested?
Let’s look at the assault laws in our state and how this situation could possibly result.
How Does Colorado Define Assault?
There are three degrees of assault in Colorado. Vehicular assault, menacing, criminal extortion, and reckless endangerment are also listed as crimes under the Assaults section of the Colorado statutes.
Assault cases generally involve the intentional or reckless infliction of bodily harm to another person, but the different degrees are there to differentiate based on the specific degree of harm. For instance, first degree assault requires the intent to cause “serious bodily injury,” whereas second degree assault only requires the intent to cause bodily injury, or recklessness which results in serious bodily injury.
The definition of “serious bodily injury” means bodily injury which involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
“Bodily injury,” on the other hand, means physical pain, illness, or any impairment of physical or mental condition.
First degree assault is a Class 3 felony, which is punishable by 4 to 12 years in jail and fines between $3,000 and $750,000. Since first degree assault is a crime of violence, however, a mandatory minimum sentence of 10 years is required if someone is convicted.
If the first degree assault happened in the heat of passion, then it’s a Class 5 felony punishable by 1 to 3 years in jail and fines between $1,000 and $100,000.
Second degree assault is a Class 4 felony, punishable by 2 to 6 years in jail and fines between $2,000 and $500,000. Some types of second degree assault are considered crimes of violence and have a mandatory minimum sentence of 5 years.
If the second degree assault happened in the heat of passion, it’s a Class 6 felony punishable by 1 year to 18 months in jail and fines between $1,000 and $100,000.
Third degree assault is a Class 1 misdemeanor, punishable by 6 to 18 months in jail and fines between $500 and $5,000. A person commits third degree assault if they knowingly or recklessly cause bodily injury to another person and the degree of injury is less than second degree assault.
In the case discussed above, Pennington was charged with first degree assault due to causing serious bodily injury on the transgender woman. Even though she went to him willingly and doesn’t consider herself a victim, Colorado can still decide to prosecute Pennington for performing this unlicensed surgery.
If you find yourself, like Pennington, facing any type of assault charge, it’s imperative that you contact an experienced Colorado assault attorney who can help you fight the charges and clear your good name.
About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.
