Mogul et al. 11 Mogul, Joey L, et al. [ JD CUNY School of Law, partner at the People’s Law Office] Queer (In)Justice: The Criminalization of LGBT People in the United States. Boston, Mass, Beacon; Enfield, 2011. (p. 88-95) //aa-ma
Close scrutiny of the nation’s courts reveals a system rife with anti-LGBT bias. Within it, discriminatory laws are enforced, queers are often treated with derision, if not outright contempt, and queer criminalizing archetypes are deployed in full force. Only seventeen years before its landmark decision in Lawrence v. Texas that struck down sodomy statutes in 2003, 9 the Supreme Court upheld laws that criminalized private sexual acts committed by “homosexuals” in the case of Bowers v. Hardwick. 10 By finding that “homosexuals” did not have a right to have consensual sex within the privacy of their own homes, while refusing to punish the same acts by heterosexuals, the Court in effect ruled that queers as a class of people were worthy of punishment. Adding insult to injury, Chief Justice Warren Burger’s concurring opinion argued that the condemnation of “homosexual sodomy” otherwise known as a “crime against nature” was “firmly rooted in Judeo-Christian moral and ethical standards” and “millennia of moral teaching.” 11 The ruling gave renewed legal weight to the message that queer people are immoral, sinful, and deserving of criminal punishment. While the sodomy laws challenged in Bowers were often not or only selectively enforced, they have a lasting, stigmatizing impact that helps strip queer people’s liberty, dignity, and ability to lead full, unencumbered lives. 12 In states with sodomy laws, and even in some where they were struck down before Lawrence, sodomy convictions for consensual same-sex acts forced many to register as sex offenders. 13 The criminalization of queer sexualities through sodomy laws was also used to deny people employment and the ability to raise their children. In 1995, the Supreme Court of Virginia denied Sharon bottoms, a working-class white woman, custody of her child based in part on the fact that she is a lesbian and allowed her partner to help her care for her child, noting that “conduct inherent in lesbianism is punishable” as a felony under Virginia’s “crimes against nature” law. 14 Similarly, sumptuary and vagrancy laws served to criminalize people who transgressed gender norms. The law in Chicago, Illinois, forbade “appear[ing] in a public place in a state of nudity, or in a dress not belonging to his or her sex,” while a Toledo, Ohio, law made it illegal for any “perverted person” to appear in clothing belonging to “the opposite” sex. 15 In New York, an appeals court upheld Mauricio Archibald’s conviction in 1968 for being a “vagrant” “who… [had] his face painted, discolored, covered, or concealed, or being otherwise disguised, in a matter calculated to prevent his being identified”. After appearing in a subway station wearing a white evening dress, high-heeled shoes, a blond wig, women’s undergarments, and facial makeup, Archibald was found guilty, despite being neither unemployed nor homeless. The court found the crime to be one of “conceal[ing] his [sic] true gender,” although Archibald’s true transgression may have been winking at the officer. 16 As another court declared, “cross-dressing” must be punished because “the desire of concealment of a change of sex by the transsexual is outweighed by the public interest for protection against fraud.” 17 Although for the most part sumptuary laws were struck down in the 1970s, and vagrancy laws were either held unconstitutional or redrafted in the 1970s and 1980s, their effects linger to this day. In 1989, a New Jersey trial court denied a transgender woman the right to change her name, holding that it is inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for the sole purpose of representing himself to future employers and society as a female.” 18 In other instances, courts have denied transgender people survivor benefits from their deceased spouse on the grounds that their marriages were either void or based in fraud because the transgender person concealed their “true” identity. 19 The stigma of laws explicitly criminalizing queer identities and sexualities has left an enduring stain on the notion of justice, continuing to inform the treatment of queers in courts, particularly when accused in criminal cases. According to former Philadelphia public defender Abbe Smith, queer criminal defendants “are notoriously badly treated throughout the criminal justice system: police are nasty to them … court personnel often mock them; it is the rare judge or magistrate who treats these defendants with dignity or respect.” 20 Other attorneys report that transgender people “continue to experience more overt and unabashed bigotry within the legal system than almost any other group” and are routinely denied basic human dignity when referred to by judges as “it”. 21 Anonymous surveys conducted by judicial commissions and bar associations to determine the level of bias or prejudice suffered by gay and lesbian court users and employees found that homophobic prejudices continue to permeate courthouses across the country. 22 These studies – though limited because they fail to examine the treatment litigants experienced on the basis of race, gender identity, and class, along with sexual orientation – universally concluded that the majority of gay and lesbian litigants experienced courthouses as hostile and threatening environments, whether in criminal or civil cases. A study of the California state court system in 2001 found that 56 percent of gay and lesbian litigants experienced or observed a “negative comment or action” and “one out of every five court employees heard derogatory terms, ridicule, snickering or jokes about gay men or lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees.” 23 A 1997 study by the Lesbian and Gay Law Association of Greater New York (LeGal) similarly found that 56 percent of respondents witnessed bias-related incidents in the courts of the Second Circuit, including “’gay bashing’ remarks”; “gay jokes,” “express references to ‘homos’”; “’gay male’ mimicry of the limp wrist genre”; and comments suggesting that judge Deborah Batts, an “out” Black lesbian federal judge, “looked like a man.” 24 A 1998 study of the New Jersey State court system found that 79 percent of gay and lesbian respondents reported observing offensive gestures, disparaging remarks, or offensive jokes. Forty-five percent of gay and lesbian respondents said they observed litigants or witnesses being treated disadvantageously because they were perceived to be gay or lesbian. One gay father reported that “’the judge wanted to force me to take an HIV test.’” Other reports indicated that women openly identified as lesbians were “treated rudely” in family court. In another case “’a lawyer, his client and several witnesses used the other litigants’ homosexuality to assert [that] both the defendants and [their] witnesses were alcoholic and sexually promiscuous and predatory.’” 25 Gay and gender-nonconforming people are also repeatedly denied professional, effective, and competent legal services by attorneys who represent them. According to law professor Dean Spade, gender-nonconforming people “consistently report experiencing extreme disrespect when attempting to access legal services, having their cases rejected or ignored by the agencies they turn to, and feeling so unwelcome and humiliated that they often do not return for services.” 26 Even well-intentioned legal advocates are often unprepared to skillfully represent LGBT people because they have limited knowledge of their clients’ lived realities. Spade writes of one instance where a criminal defense attorney prevented a judge from sentencing her clients, two transgender women, to a women’s drug treatment facility because the lawyer was under the misapprehension that this was somehow improper, and had failed to discuss gender identity and safety in sec-segregated programs with her clients. 27 Lack of information and understanding about the needs and experiences of LGBT litigants poses a particular problem in cases when they are accused of violent crimes. The circumstances of a queer person’s life may include severe discrimination and suffering that could, if presented to a judge or jury by an informed and skilled advocate, mitigate the sentence imposed, particularly in capital cases. The quality of representation provided to LGBT people in criminal cases, many of whom are poor and working class, is further compromised by the lack of resourced available to attorneys who represent indigent defendants. The presumption of criminality stemming from laws expressly punishing homosexuality and gender nonconformity, courtroom practices further stigmatizing LGBT people, and the promulgation of archetypal narratives that brand queers as deceptive has effectively eroded the credibility of queer people in the court system. Thirty-nine percent of gay and lesbian respondents in the California State survey believed their sexual orientation was used to devalue their credibility”. In one instance “jury members suggested that [a] witness was gay and therefore his testimony could not be trusted,” and another in which a gay respondent said, “I was discredited as a witness because they said I was probably ‘out at a club or something’ before I witnessed the accident.” 28 In Chicago in August 2007 a Black transgender woman named Monica James was charged with attempted murder and a host of other crimes against a white, gay, off-duty police officer. The prosecution deployed the archetype of transgender people as inherently deceptive by asking the jury point blank, "How can you trust this person? He tells you he is a woman; he is clearly a man," and insisted on referring to James using male pronouns throughout the trial. The state also argued that James' self-defense claim was "insane" because the off-duty police officer was gay. Owen Daniel-McCarter, an attorney with the Transformative Justice Law Project (TJLP), later remarked, "That argument ignores the intricacies of race and gender... in the gay community." As James explained on the stand, "He [the officer] doesn't like my kind of faggot." Ultimately, James was acquitted of the more serious criminal charges, but found Lilty of aggravated battery.29 This hostile and prejudicial environment makes it difficult at best, and sometimes impossible, for queer people to vindicate their rights or be heard in court. This is particularly true in cases involving alleged "sex-related offenses," in which queer criminalizing archetypes have particular resonance. Respondents to the 1998 LEGAL survey reported "a belief that judges automatically assume[d] a gay man is guilty of any sexual act with which he is charged.'"30 Gay men, transgender women, and gender-nonconforming people are commonly overcharged in connection with sex-related incidents, facing substantial jail time or sex offender registration if convicted.31 Such overcharging, with the accompanying threat of incarceration, can have a coercive effect on queer defendants, who are vulnerable to violence and rape while imprisoned. Similarly, the archetypal narrative that casts queers as inherently deceptive undermines LGBT defendants' ability to challenge sex-related charges based on arrests by undercover officers. In such cases, the word of a queer defendant—already marked as dishonest and perverted-is pitted against the word of law enforcement officers, whose testimony is generally afforded more credibility than that of civilians. In light of these circumstances, queer defendants often accept less than equitable guilty pleas to escape the humiliation of defending against such charges and the harsher / punishments they risk if convicted after a trial. The acceptance of such deals is also driven by shame, fear of family or community members' discovery of sexual orientation or gender identity, or simply a desire to put the entire incident behind them. According to Thomas Andrew, a defense attorney in San Antonio, Texas, "The biggest problem we are having from the standpoint of wrongfully charge defendants is that 95 percent of them are so embarrassed by the [sex-related] charge... they are afraid to fight."32 Regardless of whether a queer defendant receives a favorable or unfair plea bargain, the arrest and subsequent conviction leaves a mark, in the form of a criminal record, that silently follows many queers for the rest of their lives, impacting employment opportunities, professional licenses, the ability to overcome considerable barriers faced by LGBT people seeking to become foster or adoptive parents, and immigration status. For instance, immigrants can be removed from the United States if "convicted of a crime involving moral turpitude." 33 The 1994 prosecution of Sean O'Neil, a white transgender man in Colorado Springs, Colorado, illustrates the operation of many criminalizing dynamics in sex-related cases. O'Neil, who was in his late teens, had consensual romantic relationships with four underage teenage girls. One of the girls obtained a restraining order against him for making threatening phone calls. When serving the restraining order, a police officer frisked O'Neil and discovered an identification card bearing the name "Sharon Clark." The police subsequently obtained a court-ordered gynecological exam that "sexed [O'Neil] as female." The girls with whom O'Neil had relationships acknowledged that the sex was consensual when they believed he was male. Nonetheless, the girls and their parents claimed it somehow became involuntary after they learned he was transgender and willingly participated in O'Neil's prosecution. Throughout the case, prosecutors deployed the overarching archetypal theme of the deceptive gender transgressor, charging O'Neil with "criminal impersonation" in addition to sexual assault. This framing influenced the judge, who, proclaimed during the sentencing hearing, **What this case is about is deceit.'" According to Deputy Sheriff Tonye Barreto-Neto, then director of Transgender Officers Protect and Serve (TOPS), the motivations for the prosecutors' charging decisions were clear: "This case would never ever have been facing 32 years in prison if the issue here wasn't some homophobia or transphobia. And the fact that Sean anatomically is female, because if it were a 19 year-old boy and 14 year-old girl—and I deal in child abuse and I deal in these cases all the time-they never really get to court. And if they do, they're misdemeanors." Facing a minimum sentence of twenty years imprisonment if convicted, O'Neil opted to plead guilty to second-degree sexual assault. His sentencing hearing was attended by a courtroom full of transgender people and other supporters organized by FTM (Female to Male) International. He was ultimately sentenced to three months in a women's prison and was required to register as a sex offender.34 In addition to coercive pleas and wrongful convictions, queers facing sex-related charges face disproportionate and excessive sentences. For example, Mathew Limon, who had just turned eighteen, was sentenced in 2002 to serve seventeen years in prison for having oral sex with a fourteen-year-old boy (who was a month shy of fifteen) whom he lived with in a home for developmentally disabled people in Kansas. His sentence was fifteen times longer than it would have been if he had engaged in the same conduct with a fourteen-year-old girl under a "Romeo and Juliet" statute that reduced the punishment for teenagers who engaged in consensual sex with minors of the opposite sex. Notwithstanding the U.S. Supreme Court's decision in Lawrence, the Kansas Court of Appeals nevertheless upheld Limon's disproportionately excessive sentence, finding that his punishment was necessary to protect and preserve "traditional sexual mores of society" and to protect "the historical sexual development of children."35 Fortunately, the Kansas Supreme Court overruled this decision and he was released after spending an additional four years in prison.36 Limon's case was not as unusual as it may seem. Queer criminal archetypes all too often influence the sentence upon conviction. For example, in New Jersey, gay men convicted of loitering when suspected of "cruising" in a park were ordered by a judge to undergo psychiatric evaluation. According to a social worker in New Jersey, "Sentencing patterns are clearly stricter [for homosexual sex offenders] than [for] heterosexual sex offenders." 37 Unfortunately, the same dynamics that serve to criminalize adults in the courts operate to damn LGBT youth in the juvenile system. A study titled Hidden Injustice: Lesbian, Gay; Bisexual and Transgender Youth in Juvenile Courts, completed by the National Center for Lesbian Rights (NCLR), the National Juvenile Defender Center, and Legal Services for Children in 2009 concluded that LGBT youth are "disproportionately charged with and adjudicated for sex offenses in cases that the system typically overlooks when heterosexual youth are involved. Even in cases involving nonsexual offenses, courts sometimes order LGBT youth to submit to ... sex offender treatment programs based merely on their sexual orientation or gender identity." The study also found that LGBT youth are unnecessarily and disproportionately detained pending trial, based on the perception of LGBT youth as sexually predatory and on the lack of services and placements for LGBT youth.38 The pernicious criminalizing effects of queer criminal archetypes in court proceedings are particularly disturbing when examined in the context of cases involving the most severe charges and sentences in the criminal legal system— capital cases.