Queer Lockdown: Coming to Terms with the Ongoing Criminalization of LGBTQ Communities

Lessons from the Trenches: Reliance on Law Enforcement a Double-Edged Sword

Notwithstanding the fact that Lawrence v. Texas¹ overturned anti-sodomy laws that criminalized gay sex, the ongoing criminalization of queerness persists for those who fail to conform to mainstream notions of gender expression or, as writer and poet Audre Lorde described it, “the mythical norm.”² As alluded to earlier, people living with multiple identities who are at risk of criminal justice involvement are often subject to harassment by the same law enforcement apparatus empowered to provide them with safety and security.

All communities are entitled not only to safety and security but also to autonomy and self-definition. Bigotry and discrimination often drive police to act as an occupying army in some communities, at the time when they should be rendering aid. When confronting everyday violence, communities living on the margins have a well-founded reluctance to engage law enforcement. The fear of further victimization by the state in pursuit of safety has sometimes required people to seek immediate resolution of a crisis, while acknowledging the risk that police intervention can do further harm.³ The same concerns about police intrusion, bias, and brutality are relevant in the queer community, particularly for poor queers of color. However, members of the community who are at risk should not be alone in questioning the larger impact of criminal justice encroachment. The experience of activists in the anti-violence movement is instructive in identifying some of the critical problems with single-issue advocacy.

In the spring of 2000, thousands of scholars, activists, lawyers, and service providers descended on the University of California in Santa Cruz to attend a conference entitled “The Color of Violence: Violence Against Women of Color.” These participants were drawn from the social movements to combat sexual assault and domestic violence, but they were frustrated by the inability of anti-violence organizations to effectively address the problem of routine violence in women’s lives. In large measure, that frustration stemmed from an analytical failure to address state violence in conjunction with private violence experienced within communities of color.⁴ Conference organizers later went on to establish INCITE!,⁵ a network of community organizations that continues to provide critical analysis and organizing tools to respond to violence. They frame the issue as responding to “the multiple forms of violence women of color experience in our lives, on our bodies, and in our communities.”

One of the basic tenets arising from the conference (and later INCITE!) is a critique of the anti-violence movement’s reliance on the criminal justice system as the front-line approach to ending violence against women.⁶ They argue that as an overall strategy for ending violence criminalization has not worked. Over-incarceration has failed to stem the tide of violence against women in the U.S., on the borders, and abroad. Moreover, the criminalization approach has brought more women into conflict with the law. They note, in particular, the negative effect on “women of color, poor women, lesbians, sex workers, immigrant women, women with disabilities, and other marginalized women.”⁷

One negative impact on women and also on queer people results from “mandatory arrest” policies enacted by statute in many jurisdictions.⁸ These laws originally came about at the urging of advocates lamenting the failure of law enforcement to treat family violence as a crime comparable to stranger violence. Mandatory arrest laws require the arrest of “perpetrators” of violence when there is evidence of a crime, typically when police respond to a domestic violence call. One concern about the implementation of this policy is that police discretion about who to arrest can potentially result in the arrest of the victim if she fought back or was falsely accused of instigating the attack. For queer people, such a situation can be especially problematic, due to gender stereotyping.⁹ As a practical matter, mandatory arrest policies may result in some victims seeking less support and intervention from the authorities, for fear that they, too, would be swept into the criminal process.¹⁰

1. Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court, in a 6-3 decision, declared unconstitutional a Texas law that prohibited sexual acts between same sex couples. Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. [↩]
2. Audre Lorde, “Age, Race, Class and Sex,” Sister Outsider: Essays and Speeches (1984): 116. Lorde opines that, “Somewhere on the edge of consciousness, there is what I call a ‘mythical norm,’ which each one of us knows ‘that is not me.’ In [A]merica this norm is usually defined as white, thin, male, young, heterosexual, Christian, and financially secure. It is within this mythical norm that the trappings of power lie within this society. Those of us who stand outside that power often identify one way in which we are different, and we assume that to be the primary cause of all oppression, forgetting other distortions around difference, some of which we ourselves may be practicing.” [↩]
3. See Anannya Bhattacharjee, American Friends Service Committee and the Committee on Women, Population and the Environment, Whose Safety? Women of Color and the Violence of Law Enforcement (2001): 51 http://safetyandjustice.org/info/nation/story/474. [↩]
4. Organizers also critiqued the “professionalization” of anti-violence movement that some said was a barrier to women organizing to create more appropriate methods for dealing with violence. [↩]
5. INCITE! Women of Color Against Violence is a “national activist organization of radical feminists of color advancing a movement to end violence against women of color and our communities through direct action, critical dialogue and grassroots organizing,” http://www.incite-national.org/index.php?s=35 (last accessed on June 16, 2009). See generally The Color of Violence: The Incite! Anthology (2006 Paperback). [↩]
6. INCITE! Women of Color Against Violence and Critical Resistance: Statement on Gender Violence and the Prison Industrial Complex [hereinafter INCITE! Statement] http://www.incite-national.org/media/docs/5848_incite-cr-statement.pdf. [↩]
7. Id. [↩]
8. American Bar Association Commission on Domestic Violence, Mandatory Arrest Policies By State (2007) http://www.abanet.org (PDF). [↩]
9. Sharon Stapel, Civil Legal Remedies for Domestic Violence in the Lesbian, Gay, Bisexual and Transgender Communities (2008). Stapel, Executive Director of the New York City Gay and Lesbian Anti-Violence Project (AVP), notes that “[a]ssuming that the more ‘butch’ or masculine-acting (or identifying) partner in a lesbian relationship is an abuser, or assuming that the more effeminate-acting (or identifying) partner in a gay male relationship is the victim, creates not only a barrier to talking with clients, but also a potential erroneous analysis of who is the victim and who is the perpetrator in the relationship.” Available at http://www.abanet.org (PDF). [↩]
10. See e.g. David Hirschel, et al., “Domestic violence and mandatory arrest laws: to what extent do they influence police arrest decisions?” Journal of Criminal Law and Criminology (2007) (Research suggests that the increased arrest rate is in part attributable to a disproportionate increase in arrests for females either as a single offender or as part of what is known as a “dual arrest,” the situation that occurs when the police arrest both parties involved in an incident for offenses committed against each other.); see also Lenore Simon, et al., Unintended Consequences of Mandatory Arrest Policies: Assessing the Wisdom of the Criminalization of Domestic Violence, paper presented at the annual meeting of the American Society of Criminology, November 14, 2007 (exploring the wisdom of criminalization trend in domestic violence). [↩]