Is Queer Sex Legal? How Homophobia Is Fueling Today’s Sex Laws

Picture courtesy of New York Public Library

Picture courtesy of New York Public Library

The Mattachine society was one of the earliest American gay rights groups, formed in 1950 to address the overwhelming discrimination gay men and other queer people faced. The criminalization of gay sex in the mid-twentieth century is well known and federal anti-sodomy laws weren’t off the books until 2003.

Slate recently unearthed a document in the Mattachine archives from 1964 that shows a list of sex crimes–sodomy, fornication, adultery, and cohabitation–and their corresponding mandatory sentences. Sodomy had by far the harshest penalties, with mandatory minimums of 20 years in prison in Florida, Massachusetts, Minnesota, and Nebraska. North Carolina even allowed up to sixty years in prison for sodomy, which, at the time, had a very broad definition.

The document states that “sodomy, often referred to as ‘the crime against nature,’ includes a wide variety of ‘unnatural’ sexual activity, with animals or with another person of either sex, both within and outside of marriage.” Seemingly broad in scope and deliberately vague, anti-sodomy laws were largely understood to specifically target same-sex relations.

These are incredibly harsh penalties for sexual practices that most would consider innocuous in 2017. Gay rights groups have made great strides in repealing anti-sodomy laws on federal and state levels, and these efforts should be commended. And yet–prosecutions for sex crimes are growing faster than any other type of crime, with an exponentially rising rate of arrests and convictions. Gay men are arrested in cruising stings, HIV-positive men sent to prison for merely being sexually active, sex workers and “johns” arrested for victimless crimes, adults busted for sexy online chat with cops posing as minors that don’t exist, consensual teen relationships torn apart, and lives ruined by forced lifetime sex offender registration.

Much of these prosecutions disproportionately affect queer folk, despite advances in civil rights for LGBT people. Have the baldly homophobic laws of the 20th century really gone away? Or are they merely being repackaged and rebranded for a more gay-friendly public?  More pointedly, is queer sex actually legal?

Gay Cruising

One of the earliest, and longest lasting, examples of systemic criminalization of queer people can be seen in gay cruising stings. In order to catch and prosecute people for sodomy, law enforcement had to be discreet, impersonating gay men and frequenting gay populated areas like bathhouses.  Throughout the 20th century, bathhouses and other back-alley meeting places provided a necessary and relatively safe space for gay men in the face of increasingly stringent sodomy laws.

The first recorded cruising sting occurred at New York’s Ariston Baths in 1903. The raid saw 26 men arrested and 12 put on trial. A 1957 sting at St. Mark’s Baths in Manhattan led to the arrest of 31 men for “immoral acts”; in 1966 San Francisco ordered a crackdown on bathhouses. Such operations continued well into the 1970s, with harsh punishments designed to frighten and humiliate gay men. Since the 1980s, as a result of the AIDS epidemic and the ever-present threat of police raids, bathhouses have declined in popularity. Many were forced to shut their doors, and gay men ventured into more public spaces to find sexual partners.

Stings continue to target gay men today, mostly in parks, bathrooms, and other public spaces. In 2007, 40 men were caught in Johnson City, Tennessee. Another 500 men were stung over a period of five years, from 2002 to 2007, in the Salt Lake City area. In 2008, 24 men were netted in Huntsville, Alabama and an additional 19 men in Palm Springs the following year. With arrests in the double digits, 2011 was a banner year for Kent County, Michigan and Kansas City. The list is ongoing.

These are incredibly harsh penalties for sexual practices that most would consider innocuous in 2017.

Law enforcement use disarmingly simple tactics to entrap these men. In 2013, undercover Dallas officers dressed in “speedos and suggestive T-shirts” positioned themselves along park walkways, enticing men into the bushes. More than 20 gay men were captured in the operation. Not all cruising stings involve scantily clad detectives, but many involve duplicitous seduction. For example, Atlanta bagged 50 men during Operation Summer Heat in 2011, when police officers posed as men seeking sex along streets frequented by gay prostitutes. The sex workers apprehended received jail time ranging from 10 to 180 days, depending on the number of prior prostitution charges. Law enforcement’s continuing war against sex work presents itself through their creation of cynical holidays such as the “National Day of Johns Arrests.”

For many, the end result of involvement in a sting can be jail or even sex offender registration, not to mention the public humiliation of a mugshot on the nightly news. Why aren’t officers asking women for a little action in the bushes? In the eyes of law enforcement, gay sex is still seen as illegal, immoral and deserving of erasure.

Online Stings

Advances in technology have made cruising more accessible; first through sex hotlines, then chat rooms, and now dating apps; Grindr and similar dating apps are the latest tool for persecuting queer people. As cruising has evolved, it has given law enforcement a broader menu from which to select would-be offenders.

Law enforcement officials in D.C. have made a meal out of targets on websites “widely known as dating and sex hookup sites for adult gay men.”

As of 2012, 66 people have been convicted in online stings in the District. According to the Washington Blade, detectives created a fake profile of a man describing himself as “6-foot-2, athletic, versatile” and a “no limit perv.” After initiating contact, the detective would propose sex with a minor. Many of the men who were caught would only go along with the ruse when drugs were offered as an additional incentive. Only one man out of the 66 was acquitted; he had faced a sentence ranging from 10 years to life.

Online stings beg the question of who is the predator and who is the prey.

D.C. is not alone in serving up online stings. From 2008 to 2014, detectives in Florida arrested over 1,200 men in another operation, this time trolling gay dating websites like Adam4Adam. Undercover officers created adult profiles and flirted with users, eventually “revealing” that they were, in fact, minors, rendering the online interaction illegal. Men who were not seeking out minors ended up facing not only long sentences, but sex offender registration. Currently, law enforcement officials are under investigation for the ethical questions raised during the course of the Florida stings.

We live in an internet culture where identities are often not what they seem; fantasy is an important aspect of online communication. When there is no real way to discern fact from fiction, danger and risk are not so easily assessed. In a virtual world of concealed identities, where law enforcement can take whatever form it chooses, online stings beg the question of who is the predator and who is the prey.

Child Pornography

Possession of child pornography has seen the most explosive growth among all sex crime convictions. Jacob Sullum at Reason explains, “The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. And unlike drug offenders, they rarely qualify for lower sentences. Most sex offenders (72 percent in 2010) are charged with child pornography offenses, primarily (58 percent) possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years.”

Child porn laws are vague and inconsistently used–many people arrested vehemently maintain their innocence. All it takes to be convicted of downloading child porn is an accusation by law enforcement, as one queer man can attest to. There have even been reports that the FBI hosts dummy child porn websites that don’t actually contain porn, attracting curious web surfers and making it easier to entrap men and rack up arrests. Is clicking on a false porn link automatically evidence of intent to download illegal material? In cases where no real minor is involved, has a crime even been committed?

If a kid goes into the 7-Eleven and steals eight packs of Oreos, we don’t charge him with eight counts of theft. We charge him with one.

One man in Florida was sentenced to life in prison for possessing 454 computer files of child porn. This points to another unique way lawmakers and prosecutors inflate penalties for sex crimes, by viewing each file as a new crime and a new felony. Judge Chris Altenbernd of Florida explains, “If a kid goes into the 7-Eleven and steals eight packs of Oreos, we don’t charge him with eight counts of theft. We charge him with one.” A man who received a 200-year sentence for possessing 20 images was unable to sway the Supreme Court that his penalty was “excessive.” Child porn possession thus becomes an offense with penalties greater than hands-on sex crimes, despite lower recidivism rates.

Public indifference to excessive child porn convictions breeds personal tragedy, as in the case of Jesse Ryan Loskarn, a Washington chief-of-staff who committed suicide after his arrest for downloading child pornography depicting underage boys. His suicide note exposed his own history of sexual abuse, which he acknowledged might have led to him to his child porn offense. Such loss of life should cause concern for people invested in criminal justice reform, as should sentences of hundreds of years in prison for hands-off crimes with no discernable victim.

HIV Criminalization

The first HIV laws of the 1980s were passed to curb transmission of the disease when HIV panic had reached its zenith. Today, HIV is not the death sentence it once was. HIV status, however, may still net a lengthy prison sentence. In 2008, Nick Rhoades was sentenced to 25 years for failing to disclose his HIV status to a male partner. Rhoades not only used a condom, but his viral load was undetectable. Under advisement of an attorney, Rhoades pleaded guilty. He spent time in prison and on the sex offender registry before the Iowa Supreme Court overturned his conviction in the summer of 2014.

Robert Suttle was similarly convicted under non-disclosure laws. Like Rhoades, Suttle pleaded guilty to avoid a 10-year sentence. Even though he was not accused of transmitting HIV or even lying about his status, he was convicted of not disclosing his status prior to sexual contact. Suttle was sentenced to probation and required to register as a sex offender for 15 years. When Suttle met with his probation officer, however, he discovered that in order to register as a sex offender he also had to serve jail time. The court resentenced him for six months in jail as a result. His driver’s license serves as a constant reminder of his status, embellished with “SEX OFFENDER” in bright red letters.

#hivisnotacrime

Today, 32 states have specific laws criminalizing HIV. A Slate article revealed that in Iowa, for example, an HIV-positive person who transmits HIV with “reckless disregard” can still face five years in prison. In 2014 in Wisconsin, HIV transmission or exposure began being used as a sentencing enhancement for certain sex offenses. Exposing someone to HIV in Arkansas guarantees a felony offense with sex offender registration.

Actual transmission of HIV is not a requirement for incarceration in most states, merely the chance of contracting HIV. This feeds a dangerous cycle: incarceration and possible sex offender registration heightens fear of the disease, which inevitably leads to new transmissions–no one will want to get tested if a positive result could land you in jail. Unfortunately, it looks as if the stigma will continue as reform has slowed to a halt.

Queer Youth

Queer youth are not exempt from biased criminalization of sex crimes, a cruel irony given that sex offender registration was purportedly meant to protect children from dangerous predators. Research indicates queer youth are disproportionately targeted as a result of subtle discrimination.

The case of Kaitlyn Hunt, a young lesbian from Florida, is one of the most recent and dramatized instances. Hunt, 18, was charged with lewd and lascivious battery simply for being in a consensual relationship with a 14-year-old girl at her high school. She eventually pleaded to lesser charges and escaped sex offender registration, but she is forever branded.

Participants were significantly more apt to punish a gay male youth than either their lesbian or straight equivalents.

In 2000, Matthew Limon  was a week past his eighteenth birthday when he performed consensual oral sex on a 15-year-old boy. Both Limon and the boy were residents at a home for developmentally disabled youth. Limon was charged under Kansas’s sodomy statute, which had disparate sentencing guidelines for straight and gay defendants. A straight person would have received 15 months without requiring sex offender registration, but Limon was sentenced to 17 years with mandatory sex offender registration. His conviction would not be vacated until a Supreme Court decision six years later.

Researchers developed a test to determine how harshly a youth offender should be punished. They found that participants were significantly more apt to punish a gay male youth than either their lesbian or straight equivalents. The bias against queer youth is clear. Normal problems of puberty are exacerbated for young queer people and, as the Center for Sexual Justice’s Odell Huff writes, “being persecuted by the government for consensual relationships is an unacceptable byproduct of deeply ingrained homophobia in our society and legal system.”

Queer Criminalization Today

If public opinion is shifting towards wider acceptance of LGBT people, gay marriage, and kink, then what accounts for this continuation of criminalizing sexuality?

Marie Gottschalk, author of Caught: The Prison State and the Lockdown of American Politics, explains how a focus on sex crimes is utilized to enable the growth of the prison-industrial complex. “The war on sex offenders poses perhaps the greatest political challenge for those seeking to dismantle the carceral state…All the expensive punishments and restrictions heaped on sex offenders over the past two decades show that states, municipalities, and the federal government are willing to bear enormous social and fiscal costs to wage this war.”

Even more frightening, queer-loving liberals are more often than not unwilling to speak against out-of-control sex laws. Gottschalk continues: “Talk of embracing the plight of sex offenders makes even some of the most progressive penal reformers squeamish.” James D’Entremont writes about how groups like the Human Rights Campaign, the largest gay-rights non-profit in the world, were indifferent to the work he was doing to free a wrongly convicted gay man sent to prison during the daycare sex panics of the 1980s. New York gay activist Bill Dobbs explains that “gay people intersect with the criminal justice system in all kinds of ways. But when one of us gets accused of a crime, the leadership goes mute. The focus on victims has blinded us to serious injustices.”

In an important (and rare) article on the history of queer folk and sex offender registries, Yasmin Nair also points to mainstream silence:

The focus on victims has blinded us to serious injustices.

“The term ‘sex offender’ is rarely uttered at gay and lesbian public events, raising as it does an old and timeworn stereotype that still causes fear because of its automatic association with terms such as ‘pedophile’ and ‘sodomite.’ To date, none of the major gay and lesbian organizations has explicitly taken a position on issues concerning sex offender registries. But there are in fact gay sex offenders on the registry, and there have always been widely sensationalized cases of alleged and real sexual abuse of children by men who also identify as gay.”

In Sex Panic and the Punitive State, Roger Lancaster draws a theoretical link from homophobic sex panics of the past and today’s obsession with sex crime:

“Often-repeated claims about the incurability of the sex offender whose preference is for males clearly mark the genealogy of the pedophile, and free-hand theories about the ‘cycle of abuse’ echo yesteryear’s notion of homosexual contagion. In this zone of terrible ambiguity, something has remained the same, while something else, something more, is in the making: the invention of new monsters and victims; the production of new ideas about childhood, sex, and the integrity of the person; the development of new middle-class norms and phobias; and the deployment of an expansive new machinery for marking, supervising, and regulating deviants.”

As evidenced by the continual arrests of gay men and queer people for non-violent and victimless sex crimes, the sex offenders of today are not the phantasmic predators of our collective imaginations. Many perfectly average queer people get caught up in overzealous sex-crime sweeps and serve decades in prison, despite what assimilatory gay-rights activists would like us to believe. Wholesale queer liberation must acknowledge the uncomfortable realities of homophobia in the criminal justice system and how sexuality is policed. Strides in equal protections for LGBT people must be applauded, but if queer sex is illegal, then what are we fighting for?

A shortened version of this article appeared on Truthout.

Republished with Permission