Pt. II: An Unjust Criminal Justice System

Entering the System

Have you been unfairly targeted by police?

LGBT youth and adults enter the criminal justice system due to three main factors that lead to their increased criminalization, according to the Center for American Progress and the Movement Advancement Project. Each of these factors is onset by discrimination, which is unjustly put upon LGBT people who largely lack the means to defend or prepare themselves when encountered by the law.

Focusing on part two of Entering the System: Discriminatory enforcement of laws criminalizes LGBT people from "Unjust: How the Broken Criminal Justice System Fails LGBT People", we confront factors such as HIV/AIDS, law enforcement and entrapment.

HIV criminalization laws are an impediment for members of the LGBT community. State “anti-sodomy laws” directly targeted LGBT people until 2003 when they were struck down by the Supreme Court. Unfortunately, LGBT people are still criminalized through other discriminatory laws, such as HIV criminalization laws, state indecency laws and drug laws.

HIV criminalization laws penalize those infected by HIV, even when they are behaving responsibly (by use of condoms) and consensually. Because of this, people living with HIV are at risk of being criminalized daily. In some states, this requires being registered as a sex offender.

Studies show that these HIV criminalization laws discourage people from seeking treatment, getting tested and/or disclosing their condition. And, according to the Centers for Disease Control and Prevention, "Unjust" says, “HIV criminalization laws do not take into consideration prevention measures, including condoms, antiretroviral medications, and pre-exposure prophylaxis (also known at PrEP)—all of which reduce, or completely eliminate, the risk of transmission.”

In the five years between 2008 and 2013, there were about 180 prosecutions of people living with HIV. These prosecutions involved consensual sex or biting and spitting (which have no risk of transmitting the disease). Reckless endangerment, assault, terroristic threats and attempted homicide were the charges placed on these individuals.

In general, racial disparities are clear in about two-thirds of these cases; and transgender individuals living with HIV fear false accusations of nondisclosure and believe it would be difficult to get a fair shot in the courtroom if accused.

According to the "Unjust" HIV Criminalization map, only six states (and Washington, DC) have no known prosecutions or HIV-specific statutes: New Mexico, Wyoming, Vermont, Rhode Island, Hawaii and Maine.

Another problem for the LGBT community regards laws criminalizing consensual sex (we mentioned anti-sodomy laws before). In 2003, the US Supreme Court ruled in Lawrence v. Texas that the federal government could no longer legislate consensual, private activity between adults. This made a significant difference within the LGBT community, but there are still 12 states that have not repealed their anti-sodomy laws.

Men who have sex with men are at the highest risk for criminalization of consensual sex. Gay and bisexual men are targeted with these state laws, no matter their personal consent or right to privacy. In many cases, police center themselves in places where men are known to make sexual contact, such as “gay strips” or public parks. When these men are penalized, some are made to register as sex offenders. This can have lifetime consequences.

In Baton Rouge, LA, in 2013, an undercover police officer met another man at a public park and invited him back to his place for “some drinks and some fun.” When the man consented, he was arrested. No illegal activity took place. (This happened only three years ago – think about that.)

LGBT young people are at high risk for prosecution as well, under statutory rape laws and laws regulating sex between minors. Their sexuality is often considered inappropriate by family members, teachers and law enforcement; even when practiced responsibly and consensually. Many of these criminalized cases involve the LGBT young people to be unfairly convicted as sex offenders, making it hard to finish school or work.

In Texas, “sexual contact with a minor under the age of 17 is a felony, unless the parties involved are no more than three years apart in age, each member is older than 14, the sexual contact is consensual, and they are the opposite sex. LGBT young people engaged in same-sex sexual contact are excluded from this exception.” If a parent disapproves of their child’s sexual preferences, the sexual partner can be reported to law enforcement and face dire penalties.

The drug policy in the United States is another problem for LGBT offenders. About 51 percent of people held in federal prisons were sentenced for drug-related offenses, including possession of marijuana and other nonviolent crimes. This disproportionately impacts urban communities, people of color and people living in poverty – which oftentimes includes marginalized LGBT individuals.

Research finds that LGBT people are at a greater risk of drug-related arrests due to their higher substance use rate than the broader population. This drug use is perhaps a “coping mechanism” related to their prejudicial stigma and discrimination.

According to various studies, men who have sex with other men are more likely than others to use marijuana, amphetamines and heroin; LGB youth are more likely to engage in substance use than heterosexual youth; bisexual youth and female-identified LGB youth are more likely to use substances than the rest of the LGBT community; and parental rejection during adolescence leads to negative health outcomes, such as substance abuse, for LGBT youth.

Finally, transgender individuals are more likely to be unfairly targeted by police. This is a form of discrimination widely seen in law enforcement. Some transgender people use syringes to inject hormones for their transition, and if found by a member of law enforcement, this can be cause for suspicion of drug use.

In close, discriminatory enforcement of federal or state laws assists in leading to the unjust rate of LGBT people “entering the system”. LGBT people are targeted through HIV criminalization laws, state indecency laws and drug laws. Join us next week to review Entering the System: Harmful policing strategies and tactics.

The Gayly – 3/14/2016 @ 9:52 a.m. CST