For LGBT People, Criminal Justice Equality Remains Elusive

While same-sex sexual activity is no longer criminalised in much of the Western world, and acceptance of lesbian, gay, bisexual, and transgender (LGBT) people is growing, full equality for LGBT people before the law and criminal justice systems remains elusive.

Matthew Ball Author image

Dr Matthew Ball, Crime and Justice Research Centre, Queensland University of Technology

 

 

While same-sex sexual activity is no longer criminalised in much of the Western world, and acceptance of lesbian, gay, bisexual, and transgender (LGBT) people is growing, full equality for LGBT people before the law and criminal justice systems remains elusive. Taking stock of some of these inequalities in Australia, the USA, and the UK reveals some startling insights into the extent of this inequality, and highlights where criminal justice practitioners, governments, and communities must continue to fight for change.

The ‘Bathroom Bills’ recently proposed in some US states are clear examples of recent attempts to reinforce legal inequality. These laws intend to force people to use public bathrooms that match the sex on their birth certificate, whether or not this aligns with their gender identity. These laws specifically (and deliberately) intend to expose transgender people to possible legal sanctions simply for using facilities that align with their gender, and force them to use facilities in which they may be at risk of violence. In Queensland, Australia, the homosexual advance (or ‘gay panic’) defence was only removed in March 2017. This legal defence allowed murder charges to be reduced to manslaughter if the deceased ‘made a pass’ at the perpetrator, to which the perpetrator reacted violently. This was an acceptable legal defence for a gay hate crime – one that South Australia has yet to remove. These laws play on old ideas that LGBT people are deceptive or predatory, and pose a threat, whether to children or heterosexuality.

While governments have recently expunged the criminal records of those convicted under sodomy laws, and issued formal apologies to LGBT people for government and police behaviour, for many LGBT people, the damage to their lives has been done. They may have lost jobs – or been unable to apply for others – because of their criminal record. In some jurisdictions, despite having had consensual sex with another adult who just happened to be the same sex, they may have had to register as a sex offender. The historic criminalisation of LGBT people thus casts a long shadow.

It might be less surprising that LGBT people remain the victims of some truly horrific hate crimes. The recent murders of fourteen-year-old Giovanni Melton and eight-year-old Gabriel Fernandez, allegedly committed by their fathers who feared having gay sons, highlight the extreme family violence often directed at LGBT people. Hate-motivated violence from strangers also remains a significant issue. For example, while there is debate over whether to classify the 2016 mass shooting at the Pulse nightclub in the US as a terrorist attack or hate crime, the fact remains that most of the 49 victims were Latino LGBT people.

These are certainly extreme events and receive significant media coverage. However, the everyday forms of victimisation that LGBT people experience often remain overlooked. In Australia, it has taken recent debates over marriage equality and the Safe Schools anti-bullying program to expose the largely invisible undercurrent of homophobia and transphobia impacting on LGBT people. This has been lent some political legitimacy by prominent politicians such as former Prime Minister Tony Abbott, who has very publicly stated that ‘It’s OK to say No’ to marriage equality. This has also limited progress in other areas where LGBT people experience significant victimisation. Evidence suggests that LGBT people experience domestic violence and ‘revenge porn’-related offences just as much, or at higher rates, than non-LGBT people, and yet this research has not translated into visible public campaigns to address these offences.

A key aspect of the inequalities experienced by LGBT people in the criminal justice system is their interactions with police. Unsurprisingly, given the historical role of the police as a source of injustice and discrimination in their lives – whether by arresting them for same-sex sexual activity, failing to take their victimisation seriously, or committing acts of violence against them – many LGBT people remain reluctant to report victimisation to the police. This has a very direct impact on their access to justice.

Police services have taken great strides in many respects to improve their relationships with LGBT people. I’ve spoken to many police officers who demonstrate a real commitment to change. The Queensland Police Service recently released a powerful video of officers talking about the struggles they have faced as LGBT people themselves. In 2016, Constable Mairead Devlin, a transgender police officer, raised a rainbow flag to celebrate International Day Against Homophobia and Transphobia (IDAHOT) at Queensland Police headquarters. Similar visible symbols of support are not unusual across the UK and USA, with police services increasingly participating in LGBT-related campaigns, such as Wear it Purple Day or IDAHOT. While these attempts to shape the ‘public image’ of the police can be dismissed as symbolic, these symbols are nevertheless powerful. They may actually lead to a victim of hate crime reporting to police as opposed to suffering in silence.

But healing the historical rifts between the LGBT community and the police is challenging. Even where significant progress has been made over decades to do so, it only takes one incident – or one homophobic or transphobic officer – to open up old wounds. The violent arrest of Jamie Jackson Reed, a young gay man, at the 2013 Sydney Mardi Gras Parade, which was filmed and subsequently circulated online, led to questions about just how committed police were to LGBT people, even in the Australian city considered the most progressive on these issues. Incidents such as these have a disproportionate impact on the levels of trust LGBT people have in the police. And they only entrench the difficulties that LGBT people experience accessing justice.

The barriers that LGBT people encounter accessing justice also appear in the harshest part of the criminal justice system – imprisonment. And nothing illustrates this more than the experiences of transgender inmates, who have long encountered significant and unique inequalities here. Transgender inmates have been uniquely impacted by our long-standing tendency to house male and female prisoners separately, based on the sex assigned to them at birth and not on the basis of their gender identity – regardless of whether or not they have undergone any kind of hormonal, surgical, or social transition. This means that transgender prisoners have continually experienced institutional misgendering, and had restricted access to gender-appropriate clothing or personal items, hormones, and transition processes.

These policies have had serious and compounding impacts on transgender inmates. Not only have they impacted significantly on their mental health, but they have also put them at risk of violence from other inmates. The unique vulnerabilities of transgender inmates have often led to them being housed in high-security areas or solitary confinement, not because of any wrongdoing on their part, but for their ‘protection’ from other prisoners. The resulting increase in security measures governing their lives in prison has further limited their ability to express their gender identity while incarcerated. Coupled with the isolation that comes with such housing, it has only increased their risk of suicide.

Though prison authorities are increasingly recognising and responding to these unique needs, as suggested by the recent UK Ministry of Justice ‘Review on the Care and Management of Transgender Offenders’, and the guidelines issued by the US Department of Justice, change is not yet widespread. In some jurisdictions, limited information about the policies underpinning the treatment of transgender inmates is available, and little is known about the experiences of transgender inmates themselves. And the rights of transgender inmates to access surgery and other treatments as part of their transition remains hotly debated in some contexts.

While the injustices discussed here are significant – and certainly not exhaustive – important changes have occurred to improve equality for LGBT people in the criminal justice system. And the pace of change is tied to broader social gains addressing other inequalities facing LGBT people. After all, efforts to improve reporting and response rates for homophobic and transphobic hate crimes are only effective as long as there is a broader social commitment to eliminating homophobia and transphobia.

However, those seeking to address legal and criminal justice inequalities face the danger that the broader social appetite for equality for LGBT people extends only to more ‘palatable’ issues such as marriage equality, or violence prevention, and not less popular issues such as the treatment of transgender prisoners. Meaningful change in the interests of justice obliges us to pursue goals that may not be immediately embraced by the public at large. Those who fought against criminalisation, and who sought to separate in the public’s mind LGBT people from the ‘sex offenders’ and ‘perverts’ they had long been associated with, faced similar problems.

Major gains have only occurred because LGBT people have had their voices heard, their unique experiences of legal and criminal justice acknowledged, and because police, government, and community leaders have recognised the need for business as usual to change. These must remain key components in the struggle to achieve greater justice and equality for LGBT people.

 

Dr Matthew Ball is a researcher in the Crime and Justice Research Centre, Queensland University of Technology, Australia. His research examines sexuality, gender, and the criminal justice system, and he has published widely. Matthew is the author of Criminology and Queer Theory: Dangerous Bedfellows?, and co-editor of Queering Criminology.

Email: mj.ball@qut.edu.au

Twitter: @Dr_Matt_Ball

Copyright free image: from author.

Recent Travels in a Trump Gun culture

BSC President Peter Squires discuses a recent trip to the US

PeterSquiresProfessor Peter Squires is the President of the British Society of Criminology and Professor of Criminology at the University of Brighton.

 

We had touched down in Las Vegas just twelve days after what had been the USA’s most deadly mass shooting during which 58 people were killed (plus the shooter) and 546 injured.  This was the USA’s 338th mass shooting  – defined by the FBI as incidents involving four or more gunshot casualties, not including the perpetrator, in 2017 [https://www.massshootingtracker.org/data].  Five days later we were in Tombstone, Arizona, waiting for the first of a three-times daily re-run of the infamous ‘Gunfight at the OK Corral‘ to begin.

It was 87 degrees Fahrenheit and a pale dry sun was beating down.  The audience benches in a back yard just off Tombstone’s main thoroughfare, Fremont Street, were uncomfortably hot to the touch. But right on cue, ‘Doc Holliday’ swaggered out of the saloon and began to narrate the story of a thirty-second gunfight which has been the subject of 47 separate movies.  A story which has dramatically shaped the history of ‘The Wild West’ (Guinn, 2011), laying important foundations for the region’s gun tourism industry.  After the gunfight, visitors could even have their photographs taken with Wyatt Earp, his brothers and Doc Holliday. I’m not so sure it was a good idea.

GunTourismPictures 3 and 4:  Yours truly with the ‘Earps’ and ‘Doc Holliday’, Kathy with ‘Tom McLaury’ looking mightily healthy for someone who had just been shot and killed

We were in the USA to attend a Gun Studies Symposium, scheduled many months earlier, hosted by the University of Arizona, in Tucson. Turning the visit into a week-long immersion in the vagaries of the US ‘gun culture’ was too good an opportunity to miss.  The increasing political tension concerning the issue, followed a sequence of increasingly lethal mass shootings, but the Trump administration was taking a distinctly ‘hands off’ approach.  The White House displayed a marked preference for seeing mass shootings as if they were random natural tragedies or the simple result of ‘evil’.  In either case there was a marked reluctance to address the gun question.

Personal tragedies and public issues

Route 91 in Las Vegas was still closed on our arrival, crime tape fluttered in the breeze, as crime scene examiners continued to work.   Up the road a huge tribute of flowers and white crosses honoured those killed.  Across Las Vegas electronic billboards paid tribute to the victims and heroic first responders.  But on the TV news different stories began to surface.  Even as the names of dead and injured began to filter out, and the first funerals were held, the repercussions of the incident continued to be felt.  Personal tragedies pointed to public issues, although no-one seemed any wiser as to the shooter’s motives.

Las Vegas TV news prominently featured Tina Strong, who had been shot through the head, in the process losing an eye.  She awoke from a coma while we were in the city, some two weeks after the shooting. Because she had insufficient health insurance (it may not be the first thing one thinks of in the context of gun victimisation – but pretty vital, nonetheless), friends and family had fundraised to provide the $50,000 needed for her care and convalescence.  Within days, however, half a million dollars had flooded in.

Las Vegas may have responded admirably to one tragedy, but it seemed quite incapable of grasping others.  The city which promotes the high-rolling, casino culture, lifestyle also has in excess of six thousand homeless people, the highest rate of homelessness in US cities.  Its roads are also notoriously dangerous, during the three days we stayed in the city, Clark County, chalked up its 58th pedestrian killed on the roads.  As many deaths as the Route 91 shooting, but with remarkably less media attention and still two more months of the year yet to run.

In the wake of the shooting, Nevada Democrats published gun control bills to outlaw the so called ‘bump-stock’ devices (used by the shooter to convert 12 of his military assault rifles to fully automatic – machine gun – firing) and limit ammunition magazines to ten rounds. [https://thenevadaindependent.com/article/democratic-lawmakers-introduce-bill-draft-to-ban-bump-stocks-used-in-mass-shooting-on-strip ] However, their other proposals to extend firearm purchase background checks foundered upon a disagreement with the FBI, with the federal agency refusing to underwrite the cost of performing the state level checks.

bumpstock

Both Nevada and Arizona feature amongst the most deregulated states as far as the seven most common state-level gun control measures (assault weapon restrictions, prohibition of large capacity magazines, armour piercing bullets and silencers, firearm registration systems, gun purchaser waiting periods, expanded background checks, and the licensing of firearm dealers) are concerned.  Nevada prohibits armour piercing ammunition and, consistent with the increasing polarisation of the gun debate (Democrat states introducing more controls and Republican states deregulating), Arizona recently disbanded its system of firearm sales background checks.  Furthermore county authorities are not allowed, under state law, to impose their own systems of localised background checks. [https://www.theguardian.com/world/interactive/2013/jan/15/gun-laws-united-states]

‘Open defence’ carriage of firearms is permitted in public areas although many Arizona hotels and private businesses appear to prohibit firearms on the premises. In similar fashion, the University of Arizona vetoed an attempt to allow firearms carriage on campus, thereby failing to join ten other ‘campus carry’ states.  As in thirteen other states, guns on Arizona university campuses must remain locked within vehicles.

Symposium

For these reasons, a gun studies conference in Arizona made a lot of sense, given added poignancy by the terrible events a few hours’ drive to the North. Yet this was to be a gun conference with a difference.

In marked contrast to the largely stalemated political debate on guns in the USA, which Professor Robert Spitzer, one of the USA’s leading political scientist commentators, famously characterised as ‘elephantine political forces’ battling over ‘policy mice’ (Spitzer, 1995, p.181),  the Arizona ‘gun studies symposium’ was approached through the lens of inter-disciplinary social science.  Sociologists, lawyers, historians, cultural theorists, marketing analysts, ethnographers, criminologists, political scientists and public health analysts combining their insights to throw more light, rather than heat, on the gun question.  The questions were not those which have most typically animated public discussion of guns in the USA, such as: What does the 2nd Amendment really mean? Does increasing firearm prevalence exacerbate or diminish crime and violence? And, finally, which gun control measures actually work?

Emerging issues in Gun Studies

Instead, the symposium sought to explore the nature of ‘gun culture’; what firearm ownership means to individuals, communities and societies; what are the symbolic significances of guns and gun laws, and gun ownership and social identity.  The symposium was organised into four distinct sessions: guns and violence; guns, identity and intimacy; guns and governance, and guns and markets.

The first discussions centred upon research conducted in Los Angeles exploring the ways in which formerly legal firearms ‘slipped’ into illegality and came to be used in criminal violence.  A number of issues surfaced including: irresponsible firearms dealers, ‘straw purchases’ (people buying guns for someone else), secondary sales and transfers, theft of firearms and ‘time to crime’.   No particular methods of illegal transit stood out, illegal gun markets appeared to be very localised with some handguns having a very short time between point of sale and first criminal misuse.  The findings were broadly taken to endorse existing community level interventions to tackle illegal firearm transfers.  [https://www.rand.org/pubs/technical_reports/TR512.html]

A second theme concerned the somewhat overlooked issue of firearms and suicide.  There are roughly twice as many gun suicides in the USA as homicides, in this respect alone, the USA gun suicide pattern resembles that of European societies, however there are an enormous 20,000 firearm suicides each year in the USA.  Much debate surrounds the degree to which the suicide rate is exacerbated by the scale of private gun ownership, around 53% of suicides involve firearms, with older white males running a disproportionately high risk. [https://www.hsph.harvard.edu/magazine/magazine_article/guns-suicide/]

In the remainder of the morning delegates heard a series of papers exploring issues of identity and meaning relating to gun ownership and use, one paper exploring the consequences of shootings for their victims.   Largely as a result of advances in emergency trauma care, most gunshot victims do not die as a result of their injuries, fully 80% survive, although victims’ lives are often dramatically transformed by the injuries they have received.  Extensive ethnographic research from a forthcoming book, Ricochet: Gun Violence and Trauma in Killadelphia reveals how most daily activities are complicated by firearm injury, posing continuing challenges to gunshot survivors.

In parallel fashion, a series of papers explored the emotional ties people might have with their firearms. In the first place, gun ownership tends to be concentrated within a demographic comprising white, middle aged, suburban and rural males often with a military background.  Viewed in this way, firearm ownership shares many characteristics of a cultural identity or social movement perspective.  [https://nyupress.org/books/9780814795507/]  Gun ownership becomes part of ordinary life. In a related sense, if firearm acquisition is predicated upon a sense of vulnerability or the perceived need for protection, the threat of losing one’s weapon is likely to pose an existential threat to the defence of the self, therefore gun control proposals are often fiercely resisted.

Firearm advocates typically refer to firearms as ‘tools’ and, as in the case of any tool, the purpose is to extend human capabilities. Others refer to firearms as a prosthesis, both extending human capacity, but also personal responsibility. It is worth noting that a majority of states have now permitted the concealed carry of personal firearms, augmented by ‘castle doctrine’ and  ‘stand your ground’ laws, whereby private citizens assume a de facto statutory responsibility to shoot to kill to protect.

Recent Hurricane and flooding disasters in Houston and Florida exposed the rather darker side of these laws, prompting suggestions that concealed carry permissions should be suspended during environmental crises. By contrast, gun advocates claim that, it is precisely at such moments, when the infrastructures of governance, especially policing, are under such pressure, that personal defence firearms become most necessary.  Apparently local media outlets were rife with stories of looting, violence and burglary from vacated properties, invariably the looters depicted were black.  [http://www.express.co.uk/news/world/852551/hurricane-Irma-Florida-Miami-looting-seige-Branson-Virgin-Islands-unrest ; http://www.dailymail.co.uk/news/article-4870676/Eight-looters-broke-Fort-Lauderdale-clothing-retailer.html]

The question of African American firearm ownership accents these issues especially in the wake of recent police involved shootings. Police have tended to perceive black gun possession as a potential threat, reacting accordingly. African American gun advocates remind us that some of the earliest gun control measures introduced in the USA were measures to disarm slaves and former slaves in the Southern states. Likewise cultural commentators demonstrate that the ‘gun debate’ still resounds to the intersectional politics of race, class and gender. [https://www.penguinrandomhouse.com/books/546064/stand-your-ground-by-caroline-light/9780807064665/ ]

Selling guns

The final session of the symposium was devoted to the marketing of firearms.  Papers addressed different aspects of firearm marketing practice, the first reflecting upon the changing emphases of firearm advertising, revealing how since the 1960s gun marketing had increasingly focused upon firearms for self defence rather than target sports shooting or hunting.  The overwhelming frequency of self-defence gun advertising in the leading American Gun Magazine (The American Rifleman, published by the NRA), clearly evidences this cultural change.

Rifleman

A second marketing paper focused instead upon the way in which firearm advertising, first in the decade 1985-1995, and then again in the last ten years, has effectively ramped up the firepower available to American citizens.  In the first period, on the back of loss-leader sales of semi-automatic pistols to elite police and military units, firearm advertising in leading US gun magazines, effected a shift in customer purchasing.  Fully 75% of gun advertisements featured semi-automatic handguns, which were advertised for their calibre, concealability, stopping power, speed of use, and ‘intuitive pointability’. These were combat-ready guns for civilians.  In the most recent period, since 2005, and the lapsing of a federal ban on the sale of new assault rifles, these weapons now dominate the covers and advertising space in the magazines. They are also the weapons misused in the USA’s recent most lethal mass shooting atrocities (Sandy Hook, Orlando, Las Vegas and Texas).

Contrasting advertisements:  1985-1995/ 2005-2015:   ramping up civilian firepower

1985-1995 2005-date
 GunMag1  GunMag2

A final presentation sought to show how, in a search for new markets (the average US gun-owner already has seven firearms) the gun industry has been targeting its advertising at women and children.  Although the social research data does not bear out the claims frequently made [http://journals.sagepub.com/doi/full/10.1177/1557085115609416 ], women are seen as a lifeline for the gun industry – either as potential self defence firearm purchasers themselves, or as parents capable of normalising gun ownership amongst their children.  The gun industry has been producing a range of supposedly female and child oriented firearms and accessories.  The pink ‘Barbie’ assault rifle and the brassiere holster have attracted most media attention, but there are many varieties of product available, including a colourful selection of starter rifles for children.  [http://www.nytimes.com/2013/01/27/us/selling-a-new-generation-on-guns.html ]

Gunpink

Meanwhile, back in Tombstone where, in 1881, City Ordnance Number 9, was introduced to require cowboys intent on drinking and gambling to disarm and deposit their firearms when entering town. This sits uneasily with contemporary concealed carry deregulation, and the gun tourism souvenir merchandise to be found in neighbouring shops. Nevertheless, gendered stereotypes persist, the toy guns for sale came in familiar colours, outlaws carry black, lawmen (and Doc Holliday) silver, whereas cowgirls, it seems, pack pink.

Guns1

Since, the Las Vegas shooting, America’s most deadly, the USA has seen another 40 mass shooting incidents in just over a month, culminating in the Sutherland Springs, church shooting in Texas, where 27 died and over 20 were injured.  This time the perpetrator was in illegal possession of an assault rifle.  An armed citizen intervened, but only after the tragedy.  One of the ironies of these mass shootings and the FBI data upon which they are based, is that the iconic gunfight in Tombstone in 1881, which has epitomised the ‘Wild West’ for generations, would barely have made the FBI mass shootings list today: only three people were killed.

Professor Peter Squires is the President of the British Society of Criminology and Professor of Criminology at the University of Brighton.

Email p.a.squires@brighton.ac.uk
Twitter: https://twitter.com/PSqCriminology

Copyright free images from the author.