As copies of Queer (In)Justice: The Criminalization of LGBT People in the United States hit bookstores across the country, a team of lawyers including Queer (In)Justice co-author Andrea J. Ritchie, the Center for Constitutional Rights, and the Loyola University School of Law Legal Clinic are filing a lawsuit in New Orleans, Louisiana, challenging one of the statutes cited in the book as a tool which continues to be used to criminalize and more harshly punish LGBT people.
Louisiana’s “Crime Against Nature” statute punishes solicitation of oral or anal sex for compensation more harshly than the state’s criminal law penalizes prostitution generally. Not only does a second or subsequent offense of offering oral or anal sex for money carry much longer prison terms and higher fines than any number of prostitution convictions, it also subjects individuals convicted of Solicitation of Crime Against Nature (SCAN) to mandatory sex offender registration. No state other than Louisiana requires anyone convicted solely of selling sex for money to register as a sex offender. Only in Louisiana does merely offering to provide oral or anal sex in exchange for something of value land you on the sex offender registry.
Far from being a technical requirement, being required to register as a sex offender affects nearly every aspect of a person’s life. In Louisiana, sex offenders are required to carry a driver’s license or state ID with the words “sex offender” emblazoned across it in bright orange capital letters.
Once on the registry, an individual’s picture, address, identifying information, and crime of conviction also appear on a publicly available website. Moreover, you are required to pay $60 a year to register, and between $200 and $750 to send out postcards to all of your neighbors featuring your picture, address, and the crime you were convicted of.
Imagine all of your neighbors receiving a postcard informing them you are a convicted sex offender. Most will think that you are dangerous, violent and prey on children, when in reality you were convicted for offering to engage in oral sex with an undercover officer for $50 bucks ten years ago when you were struggling through tough times. Imagine your kid or family members googling your name and learning more about your past than you ever wanted them to know. Imagine trying to explain to a prospective landlord, employer, or romantic interest that you have never harmed a child, or engaged in any conduct involving force, a weapon, or lack of consent.
Whether or not you end up having to register as a sex offender for 15 years – or the rest of your life if you are convicted of SCAN more than twice - is completely up to the police officer who decides to arrest you and the prosecutor who decides what to charge you with. Because the same conduct is covered by the prostitution statute, which prohibits solicitation of any kind of sex (vaginal, anal, oral, manual, and whatever else the imagination can conjure) for money, someone accused of offering oral or anal sex for compensation can either be charged with prostitution or solicitation of a Crime Against Nature – or both.
Police and prosecutors are given no guidance whatsoever in making that decision, which can change the entire course of a person’s life. You can either wind up with a misdemeanor criminal conviction, or a felony that requires you to register for a sex offender for 15 years to life.
As Queer (In)Justice argues, such unfettered discretion in the hands of law enforcement lends itself to overt and implicit policing of race, gender and gender identity, sex and sexuality, and poverty. The numbers bear it out – the vast majority (80%) of people required to register as sex offenders solely because of a SCAN conviction in New Orleans are African American. An overwhelming majority (97%) of women who are registered as sex offenders must do so solely because of a SCAN conviction. And, predictably, along with poor Black women involved in street-based economies, transgender women and gay men of color are singled out for SCAN charges.
Clearly, the disparity in sentencing consequences for the solicitation of oral and anal sex stems from historical condemnation of sexual activity that is non-procreative or traditionally associated with homosexuality. How can this still be happening almost ten years after the U.S. Supreme Court decided Lawrence vs. Texas, the historic case which was hailed by Lambda Legal as "a legal victory so decisive that it would change the entire landscape for the LGBT community," and supposedly eliminated criminal penalties for conduct associated with homosexuality? That’s what I thought when I first heard about this. Then I read this fateful line in the Supreme Court’s decision in Lawrence, which was decided on the basis of privacy.
This case does not involve … public conduct or prostitution.
In other words, while Lawrence eliminated criminal penalties for those engaged in consensual homosexual activity in private, it has been interpreted – erroneously, we argue - to not provide any relief to queers who engage – or are perceived as being engaged - in public sexual conduct or the sex trades. Their landscape remains, in fact, the same.
People like Michael (a pseudonym), a Latino man who was kicked out of his home for being gay at age 13 and forced to make his own way on the streets, are unfairly punished by this law. Because Michael once offered an undercover cop oral sex in exchange for $50, he was convicted of SCAN, spent 4 years in jail, and was forced to join the ranks of the Louisiana sex offender registry. He is now HIV+, and he can’t stay in a homeless shelter, get a job, or find housing because he is branded as a sex offender – and will be for the next 15 years. People like Stella (also a pseudonym), a young African American transgender woman who, like so many other transgender women, is often profiled as being a sex worker and is constantly arrested for and charged with solicitation of Crimes Against Nature every time she steps into New Orleans’ storied French Quarter as a result, is forced to register as a sex offender for the rest of her life. She’s not alone – as one person put it, “I feel like if trans women are just walking down the street, they hit them up with that charge...”
People like Frances (also a pseudonym), a middle-aged African American grandmother who was arrested and charged with SCAN as a teenager trying to make her way through high school despite grinding poverty, will continue to live in shame and fear of humiliation and harm.
Yes, this law also affects middle-aged grandmothers. As Queer (In)Justice highlights,
Cathy Cohen points out in her groundbreaking essay Punks, Bulldaggers, and Welfare Queens, gender conforming heterosexuals can also be policed and punished for exhibiting behavior or indulging sexual desires that run contrary to the vast array of punitive rules, norms, practices, and institutions which “legitimize and privilege heterosexuality.”
…women of color [are] by definition outside the bounds of heteronormativity, and therefore inherently subject to gender policing and punishment. For instance, Black feminists have consistently highlighted the development of a number of controlling narratives casting Black women as dangerous, gender deviant, “castrating matriarchs,” or as sexually aggressive, promiscuous, and depraved, to justify their regulation as both inherently criminal and as “breeders” of criminals. Cohen also points to the use of heteronormativity to exclude single mothers on welfare, predominantly perceived to be almost exclusively women of color, and sex workers, from who is “normal, moral, or worthy of state support” or legal recognition.
One African American woman forced to register under the Crime Against Nature statute asks "I was raped and used myself a lot of times. I never hurt anyone - why am I on the registry as a sex offender?" Another, who has struggled with poverty and addiction and has spent most of her life behind bars, in large part due to SCAN charges, as a result says: “There are children getting raped every day, but no, you want to go after me, and go after the transsexuals out there ... It just vex my spirit.”
In other words, there is both theoretical and real common ground among poor non-transgender Black women and transgender and gay men of color who are, or are perceived to be, involved in the sex trades, on which multi-racial and multi-issue organizing can be solidly built. The disparate punishment of certain types of commercial sexual exchanges based on ancient notions condemning queer sex should also be considered an LGBT rights issue that affects both queers and heterosexuals.
Unlike earlier efforts to challenge the statute post Lawrence, the campaign currently underway to, spearheaded by local harm reduction agency Women With A Vision, focuses on the experiences of both queers and heterosexuals of color who share experiences of policing and poverty. In this way, it represents exactly the kind of organizing Queer (In)Justice hails as the future of a progressive queer movement. Led by lesbians of color, bringing together civil rights, racial justice, women’s health, AIDS, LGBT, juvenile justice, and anti-police brutality attorneys, advocates, and organizers, and centering the voices and experiences of all people affected by the law, the campaign recognizes that issues of poverty, race, criminalization, gender, sex, and sexuality are inextricably intertwined.
Join Women With A Vision’s No Justice Campaign in demanding the repeal of Louisiana’s Crime Against Nature statute and retroactive removal of everyone who is on the sex offender registry solely as the result of a non-violent SCAN conviction. It’s just one step toward ensuring that no queer is left behind.
Queer (In)Justice: The Criminalization of LGBT People in the United States, by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock went on sale in bookstores across the country on February 15, 2011.