Defunct Laws Used To Maintain Persecution

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It seems that we have seen a lot of really unfortunate stories this year about bar raids and beatings and they keep streaming in. The LGBT community is still treated grossly unfairly by law enforcement, from arrests for nothing to weak sentences when the “gay panic” defense is used.

My buddy Nathaniel pointed me to a piece in Slate today about how there are laws that are still enforced despite being overturned by the courts as being unconstitutional. One such law in New York is a law against cruising (yes, simply propositioning someone for sex) that was struck down in 1983:

Whatever one may think of cruising and whether it should be prohibited, the court’s ruling should have killed off the statute. Instead, in the 26 years of this law’s odd posthumous career, district attorneys brought 4,750 prosecutions and judges convicted 2,550 defendants. For violating an imaginary law, these defendants paid a decidedly non-imaginary $70,000 in bail and $190,000 in court fees and fines. In the last 10 years, NYPD officers also issued 9,693 citations, forcing citizens to pay $71,000 in fees. The criminal records of these victims have never been expunged and the fees and fines have not been refunded.

Now, let me be clear that I, Zack Ford, would not encourage people to go cruising. But people definitely do it and that’s their choice. I have a serious problem if perfectly legal behavior is being prosecuted unjustly, especially when it is used to specifically target gay men.

I think that the enforcement of this defunct law represents homophobia for a lot of the people involved. For sure, if there are still law enforcement officers doing stake-outs in plain clothes trying to catch cruisers, that definitely constitutes a biased intolerance on par with the bar raids we’ve seen. But the Slate article also makes a keen point about the people accused of the supposed crime:

People who were issued citations may have feared being exposed as gay or as out of line with the norms of sexual propriety. Many of these people paid the ticket, pled guilty by doing so, and—without a judge or defense lawyer to raise a question—tried to leave the whole thing behind them.

In other words, not only did the enforcement add to the persecution of the gay community, it also manipulated individuals’ own internalized homophobia to do so. Given the quantity of money that has been squandered, it might be fair in hindsight to see this as a form of blackmail.

Of course, it’s possible people didn’t know about the law being struck down, especially since it was still on the books. The legislature also bears responsibility for not repealing it. It seems even when there is justice in precedent, there is not justice in practice.

The article also points out a number of other defunct laws that continue to be enforced, including laws against loitering in public transportation facilities (over 500 arrests) and begging (over 7,000 arrests).

I think we just need to be a little bit more diligent about protecting justice in this country…

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