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37 posts categorized "Criminal law"

January 29, 2012

The week ahead: January 30, 2012

Monday, January 30 - Trial to begin anew in Orozco v. Attorney General of Belize, the challenge to that country's sodomy law.



January 23, 2012

The week ahead: January 23, 2012

Wednesday, January 25 - Hearing on motion for summary judgment in Doe v. Jindal, in which the Center for Constitutional Rights is challenging the selective enforcement of Louisiana's sodomy law (yes, it's still on the books) in federal district court.

Also January 25 - Opening brief due in Ninth Circuit in Doe v. Reed, the appeal from a decision denying anonymity to individuals who signed petitioners to put a recall question on domestic partnerships on the ballot in the state of Washington. The case should be decided just in time for the legislature to adopt a marriage equality bill.

January 27-28 - Symposium at UCLA Law School on "Overpoliced and Underprotected: Women, Race and Criminalizaton" analyzing the interlocking nature of institutions that reinforce the subordinating nature of the criminal justice system; one panel focuses on "Punishing Sexuality and Reproduction."

December 12, 2011

Trial postponed in challenge to Belize sodomy law

Trial in the challenge to the sodomy law of Belize - scheduled to begin a week ago, on December 5 - has been postponed until late January. The reason reportedly was the filing of motions by both parties to strike expert witnesses expected to testify for the other side. The case was brought by the United Belize Advocacy Movement (Unibam) and its president, Caleb Orozco. Their attorney is Lisa Shoman of Belize City. Several international human rights organizations have presented arguments in support of plaintiffs. (Corrected 12/13/11)

December 08, 2011

Rape endemic in immigration detainee facilities; Holder still dithers on new standards

As I have noted before, Attorney General Holder is obligated under the Prison Rape Elimination Act (PREA) to promulgate national standards to curb rape in prisons and other detention facilities. He testified a year and a half ago about the cruelty of prison rape, stating that the standards were needed "yesterday." 

There are still no final standards.

And as common as rape of women and trans prisoners is in general population and maximum security prisons, there is good reason to believe that it may be even more widespread in detention facilities run by the Department of Homeland Security.  In light of that, it is outrageous that the draft standards issued by DoJ do not apply to DHS facilities. Unless AG Holder broadens the scope of the final standards, those prisons will remain uncovered. 

PREA was enacted in 2003 with a broad definition of prisons and jails and no exclusion of immigration facilities. (117 Stat. 988) Eight years later, however, DHS was created as a separate Cabinet-level agency. Attorney General Holder is electing to interpret this accident of timing as a reason not to cover DHS facilities. You can sign a petition sponsored by the ACLU urging him to reverse that position. 

From Just Detention International:

[Esmeralda Mayra Soto, a] transgender woman, fled to the US in 2002 after being raped many times in Mexico. More than a year later, she was taken into custody at her place of employment for not having a work permit and detained at a California immigration facility. During her first days there, while she was waiting to see a lawyer, an officer twice forced her to perform oral sex on him. She is now in this country legally, having obtained a form of asylum, but except in the most technical sense the US has hardly given her refuge...

Immigration detention, which is run primarily through DHS’s Immigration and Customs Enforcement division (ICE), is the fastest-growing system of incarceration in the United States. In 2006, approximately 250,000 people passed through it. This October the Obama administration, evidently determined to prove itself a strict enforcer of immigration law, announced it had deported nearly 400,000 people through the DHS system in fiscal year 2011...

Immigrants in civil detention actually have fewer legal rights than their criminal counterparts.

Continue reading "Rape endemic in immigration detainee facilities; Holder still dithers on new standards" »

December 06, 2011

Obama directs agencies to contest anti-gay governmental policies around the world

President Obama issued a memorandum on Tuesday "directing all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons." Specific steps included fighting criminalization and discrimination, aiding victims of persecution seeking asylum, and "swift and meaningful" responses to human rights abuses of lgbt persons.

The memorandum was announced simultaneously with a pretty amazing speech in Geneva by Secretary Clinton. (See companion post above.)  Indeed, as has happened before, the White House memorandum in effect applied to the rest of the Executive Branch the pro-lgbt policies that the State Department has already adopted.  From the NY Times:

The administration’s announcement formalizes several steps that Mrs. Clinton has already ordered. She has asked American diplomats to raise the issue wherever harassment or abuse arises and required a record of them in the State Department’s annual report on human rights. On Tuesday, she also announced a $3 million program to finance gay-rights organizations to combat discrimination, violence and other abuses.

A senior administration official said that the money could be used, for example, to finance a lawyers’ group that is defending gays or to pay for the training of journalists who cover the persecution of gays. It could also provide relocation aid to refugees fleeing violence or persecution.

“I am deeply concerned by the violence and discrimination targeting L.G.B.T. persons around the world,” Mr. Obama said in the memorandum, referring to lesbian, gay, bisexual and transgender people,  “whether it is passing laws that criminalize L.G.B.T. status, beating citizens simply for joining peaceful L.G.B.T. pride celebrations, or killing men, women and children for their perceived sexual orientation.”

He said in the memorandum that the State Department would lead other federal agencies [in these efforts]. The administration’s directive, months in the planning, came after a series of legal steps taken against gay men and lesbians in countries like Uganda, where the Parliament reopened debate on legislation that would outlaw homosexuality and possibly make it punishable by death...

December 04, 2011

The week ahead: December 5, 2011

Monday, December 5 - Trial begins in Orozco v. Attorney General of Belize, the challenge to the law criminalizing homosexual conduct in Belize.

Tuesday, December 6 - UPDATE: The Fourth Circuit announced that oral argument would be delayed in this case; no new date was set. Oral argument before the Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, in which the District Court ruled that a city ordinance violated the First Amendment rights of anti-abortion counseling centers by requiring them to post a sign in the reception area informing patients that they did not refer for abortion services. 768 F. Supp.2d 804 (D.Md. 2011). 

Also December 6 - Deadline for proposals for the Law and Society Conference to be held June 5-8, 2012 in Honolulu.

Thursday, December 8 -Two oral arguments before Ninth Circuit, first on whether the videotapes of the trial in the Perry case, challenging the constitutionality of Prop 8, should be released; and immediately following, on whether Judge Vaughn Walker should have recused himself from trying the case because he has a same-sex partner and therefore would have the option to marry if Prop 8 were found to be unconstitutional.

Also December 8 - Oral argument in Choice Inc. of Texas v. Greenstein. Despite the Texas name of the plaintiff, the case involves a Louisiana law allowing state officials to cite abortion clinics for regulatory violations and then immediately close them, without granting the opportunity to correct any deficiencies, unlike the process for other medical facilities. The District Court dismissed the complaint on grounds of ripeness. 781 F. Supp.2d 313 (M.D.La. 2011). Judges James Dennis, Edith Brown Clement and Priscilla Owen comprise the  panel who will hear the argument.

Also December 8 - Deadline for paper proposals for Feminist Legal Theory Workshop on Privatization and Social Responsibility to be held February 17-18, 2012 at Emory Law School.

November 29, 2011

Canadian law against polygamy upheld, but with no application to relationships outside of marriage

The British Columbia Supreme Court has ruled that the Canadian anti-polygamy law is constitutional, on the ground that its violation of religious freedom is justified by the need to prevent harm "to women, to children, to society and to the institution of monogamous marriage." In Reference re Section 293 of the Criminal Code of Canada, the court excluded minors in polygamous marriages from prosecution and also ruled that there had to be an official marriage into which multiple partners were introduced in order for a prosecution to go forward.  The case was brought by the British Columbia prosecutor after a failed effort to prosecute members of a Mormom sect.

From CBC

[Chief Justice Robert] Bauman spent several months hearing testimony and legal arguments about whether the 121-year-old ban on multiple marriages is constitutional. The landmark hearings, which wrapped up in April, focused on the polygamous community of Bountiful, but the ruling is expected to have implications for polygamists in the Muslim community.

The constitutional test case was prompted by the failed prosecution of two men from Bountiful who were charged in 2009 with practising polygamy....

The court heard evidence that teenage girls in Bountiful were taken across the Canada-U.S. border to be married, prompting RCMP in January to announce a renewed criminal investigation into the community of about 1,000 people in southeastern B.C.

Anti-immigrant attitudes fueled the decision as well:

The statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties. It is reasonable to assume that the decriminalization of polygamy would make Canada an attractive destination for polygamists from other countries, and there is no evidence that Canada would be immune from the impacts of such an influx.

There has been no decision on whether there will be an appeal to the Supreme Court of Canada.


October 31, 2011

Commonwealth Summit ends with continuing struggle over reforming anti-gay laws

The Commonwealth Summit, a biennial meeting of heads of state of British Commonwealth nations, ended its weekend meeting in Perth Australia with no decision on a new mechanism for addressing human rights abuses in member nations. The human rights controversy has arisen around a cluster of issues including the continuing existence of criminal and other laws targeting gay people. According to press reports, the conclave was driven in part by resentment toward Global North members nations to reject the recommendation of a blue-ribbon group to establish a Commonwealth human rights commissioner. The meeting also officially deep-sixed the group's report, entitled "Time for Urgent Reform." One of the human rights concerns addressed in the report (p. 100) concerned anti-gay laws:

We have also received submissions concerning criminal laws in many Commonwealth countries that penalise adult consensual private sexual conduct including between people of the same sex. These laws are a particular historical feature of British colonial rule. They have remained unchanged in many developing countries of the Commonwealth despite evidence that other Commonwealth countries have been successful in reducing cases of HIV infection by including repeal of such laws in their measures to combat the disease. Repeal of such laws facilitates the outreach to individuals and groups at heightened risk of infection. The importance of addressing this matter has received global attention through the United Nations. It is one of concern to the Commonwealth not only because of the particular legal context but also because it can call into question the commitment of member states to the Commonwealth’s fundamental values and principles including fundamental human rights and non-discrimination. 

On this issue, British Prime Minister Cameron added a warning of curtailed UK aid to countries that continue to enforce such laws. From The Guardian:

Britain has threatened countries that ban homosexuality with losing aid payments unless they reform, David Cameron has said. But he conceded that "deep prejudices" in some countries meant the problem would persist for years.

The prime minister said he had raised the issue with leaders of some of the states involved when he attended the Commonwealth heads of government meeting in Australia. Britain was "putting the pressure on", he said. But it was not a problem that would be solved by the time Commonwealth leaders are next due to meet, in Sri Lanka in 2013...

Ending bans on homosexuality was one of the recommendations of a highly critical internal report on the future relevance of the Commonwealth, written by experts from across the member nations. "We are not just talking about it. We are also saying that British aid should have more strings attached," Cameron said on BBC1's Andrew Marr Show in an interview recorded at the summit in Perth.

"This is an issue where we are pushing for movement, we are prepared to put some money behind what we believe. But I'm afraid that you can't expect countries to change overnight. Britain is one of the premier aid givers in the world. We want to see countries that receive our aid adhering to proper human rights. We are saying that is one of the things that determines our aid policy, and there have been particularly bad examples where we have taken action."

September 29, 2011

Rape statistics based on 80-year old definition of the crime

From the NY Times:

Thousands of sexual assaults that occur in the United States every year are not reflected in the federal government’s yearly crime report because the report uses an archaic definition of rape that is far narrower than the definitions used by most police departments...

Many law enforcement officials and advocates for women say that this underreporting misleads the public about the prevalence of rape and results in fewer federal, state and local resources being devoted to catching rapists and helping rape victims. Rape crisis centers are among groups that cite the federal figures in applying for private and public financing...
According to the 2010 Uniform Crime Report, released by the Federal Bureau of Investigation last week, there were 84,767 sexual assaults in the United States last year, a 5 percent drop from 2009. 

The definition of rape used by the F.B.I. — “the carnal knowledge of a female, forcibly and against her will” — was written more than 80 years ago... But that definition, critics say, does not take into account sexual-assault cases that involve anal or oral penetration or penetration with an object, cases where the victims were drugged or under the influence of alcohol or cases with male victims. As a result, many sexual assaults are not counted as rapes in the yearly federal accounting...

Steve Anderson, chief of the Metropolitan Nashville Police Department, said that the F.B.I.’s definition created a double standard for police departments. “We prosecute by one criteria, but we report by another criteria,” Chief Anderson said. “The only people who have a true picture of what’s going on are the people in the sex-crimes unit.”

In Chicago, the Police Department recorded close to 1,400 sexual assaults in 2010, according to the department’s Web site. But none of these appeared in the federal crime report because Chicago’s broader definition of rape is not accepted by the F.B.I...

September 12, 2011

Floridians divided on 19th century sex law

The South Florida Sun-Sentinel reports that agitation is afoot in that state about the law criminalizing cohabitation between unmarried men and women, plus a criminal ban on adultery. (Doubtless the adultery law, too, has been historically limited to different-sex couples. But if a gay couple marries in New York, moves to Florida and hanky-panky begins...) 

According to the paper:

Now, Rep. Ritch Workman, R-Melbourne, is on a mission to repeal the statutes penalizing adultery and cohabitation, as well as other laws he finds outdated, like a requirement that all bicycle riders keep one hand on the handle bars. He filed adultery the bill last week — it's HB 4021 — though he hasn't returned phone calls about it for the past two days.

Nobody else much wants to talk about it either. Asked how Gov. Rick Scott felt about the measure, spokeswoman Amy Graham replied simply, "This isn't an issue the governor is focused on."

The bill has no Senate counterpart. And given the almost-certain opposition of social conservatives who lobby hard on "family values" issues, it'll face tough sledding in an election year.

Consider the response of State Rep. Dennis Baxley, R-Ocala, who previously headed the Florida chapter of the Christian Coalition: "I'm not ready to give up on monogamy and a cultural statement that marriage still matters," he said.

But here's what I really love about this story.  Along with the above report, the Sun-Sentinel ran one of those pointless "polls" in which readers are invited to vote their opinion, in this case on whether the cohabitation law should be repealed.  Of 5,487 total responses:

  • Heck yeah, we live in 2011. Who doesn't co-habitate? (4582 responses)


  • No way, there's a reason this is the law. (795 responses)


("I'm not sure" drew 110 responses.)

That's right - 14% of those voting want to keep a criminal law banning cohabitation. Res ipsa.

December 14, 2010

Switzerland considers joining 8 other countries in de-criminalizing incest between adults

The Swiss Justice Department has announced a proposed reform of the Swiss criminal code, including repeal of Article 271, the provision that criminalizes sexual relations between parent and child or between siblings. The Department is scheduled to issue a report making the argument for the proposal this spring, but in the meantime, this one item has set off a huge controversy.

From Salon:

... A Justice Department spokesperson explains, "Incest continues to be a taboo in our society, but it's not up to criminal law to stop every morally reprehensible aspect of behavior. Rather, the law should be for punishing behavior that's particularly socially damaging."

Marriage between second-degree relatives (aunt/uncle, niece/nephew) is already legal in Switzerland, but the new measure would overturn the ban on consensual sexual relationships between siblings, and between parents and their adult children. (Sexual relationships with underage children would, of course, remain illegal.) The text of the bill has yet to be released, but skeeved-out opponents have heard more than enough. Barbara Schmid Federer, a member of The Christian People's Party of Switzerland, told the Telegraph that the proposal was "completely repugnant" and that she "could not countenance painting out such a law from the statute books."

... [S]ome U.S. courts prosecute incestuous adult relationships on the grounds that the government has a legitimate interest in preventing inbreeding. Other courts view children as forever-and-always minors when it comes to sexual relationships with their parents...

The Switzerland measure rejects that thinking and allows for the possibility that an adult can meaningfully consent to sex with their parent or sibling. The Swiss would hardly be the first to allow for this: According to a 2007 report by the Max Planck Institute (via World Radio Switzerland), China, France, Israel, the Ivory Coast, the Netherlands, Russia, Spain and Turkey do not have any prohibitions on consensual incest between adults. 

Meanwhile, a Columbia University Professor recently charged with third-degree incest under New York law awaits further legal proceedings. Political science Professor David Epstein, 46, was arrested for allegedly having an apparently consensual sexual relationship with his 24-year-old daughter. Professor Epstein was placed on administrative leave after the arrest; a trial date has not been set.

September 29, 2010

Canadian polyamory group seeks to avoid prosecution

From Xtra

British Columbia's Supreme Court chief justice has reserved his decision on a request by a Canadian polyamory group for the government to declare whether it will treat polyamory as criminal activity under the polygamy statute. Persons convicted of polygamy face up to five years in prison.

[Note: the British Columbia Supreme Court is a trial-level court.]

The CPAA brought forward the motion as part of a court reference to examine the constitutional validity of Section 293 of the Criminal Code of Canada. Section 293 bans polygamy.

CPAA lawyer John Ince said that polygamous relationships are based on a patriarchal system, while polyamorous ones are based on equality within a group of males and females. "We clearly fall outside the definition of the offence. If there are other elements, please specify," Ince said.

The constitutional reference arises from the failed polygamy prosecution of two men from the BC community of Bountiful. Winston Blackmore and James Oler are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) in which polygamy is practised.

They were arrested in January 2009 and charged under Section 293. A BC Supreme Court judge agreed last year with the men's lawyers that then-attorney general Wally Oppal had gone "prosecutor shopping" in order to lay charges.

Blackmore, who was not in court on Sept 8, has maintained the outcome of the reference will determine his constitutional rights, in this case, freedom of religion and his faith's belief in marriages with multiple wives.

As part of Ince's submissions to the court, he included a survey of  188 people in polyamorous households. The total number of women was 167, while there were 158 men and 40 self-identified as other. In comments, the latter were explained as gender fluid, transsexual, transperson, trans-identified, androgynous, intersex or gender queer.

September 11, 2010

To AG Holder: Please step up to the plate on prison rape

From the NY Review of Books:

A new report by the Bureau of Justice Statistics (BJS) provides grim reaffirmation of something we already knew: sexual violence is epidemic within our country’s prisons and jails. According to the report, 64,500 of the inmates who were in a state or federal prison on the day the latest BJS survey was administered had been sexually abused at their current facility within the previous year, as had 24,000 of those who were in a county jail that day—a total of 88,500 people.

In fact, the true national total is much higher. The BJS numbers don’t include thousands who we know are sexually abused in juvenile detention and other kinds of corrections facilities every year, nor do they account for the constant turnover among jailed detainees. Stays in jail are typically short, and several times as many people pass through jail in a year as are held there on any given day. Overall, we can confidently say that well over 100,000 people are sexually abused in American detention facilities every year.

As appalling as this figure is, mere numbers can obscure what is at issue here. So consider the case of Scott Howard. Scott was a gay, non-violent, first-time inmate in a Colorado prison when he was targeted by members of the “2-11 crew,” a white supremacist gang with over 1,000 members in prisons throughout the state. For two years he was forced into prostitution by the gang’s leaders, repeatedly raped and made to perform oral sex. Even after he told prison staff that he was being raped and needed protection from the gang, Scott was told that nothing could be done unless he named his abusers—even though they had threatened to kill him if he did. Because Scott is openly gay, some officials blamed him for the attacks, saying that as a homosexual he should expect to be targeted by one gang or another. And by his account, even those officers who were not hostile didn’t know how to respond to his reports, because appropriate procedures were not in place. They failed to take even the most basic measures to protect him.

Ultimately, despite his fear, Scott did identify some of the gang members who had raped him. Not only did the prison authorities again fail to respond, they later put Scott in a holding cell with one of his previous assailants on the day he was to be released from state custody. Again, he was beaten and forced to perform oral sex. Scott had a civil lawsuit settled in his favor recently, winning financial damages and seventeen policy changes that will now become mandatory in the Colorado prison system. Otherwise, however, nothing about his story is unusual.

In 2003 Congress passed the Prison Rape Elimination Act (PREA), legislation that, among other things, called into being the bipartisan National Prison Rape Elimination Commission (NPREC), a panel of experts charged with devising national standards for the detection, prevention, reduction, and punishment of sexual abuse in detention. But the implementation of these standards is now being held up, because, as Attorney General Eric Holder has explained, according to PREA the new rules should not “impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.”

Last September, the Justice Department commissioned Booz Allen Hamilton to study what it would cost to implement the NPREC standards. Unfortunately, the results of that study are too flawed to be of much use. Even more concerning is that Mr. Holder has commissioned no study of the benefits of reducing prisoner rape; nor, apparently, does he plan to. Yet as a brief submitted to the Department of Justice by New York University Law School’s Institute for Policy Integrity makes clear, “substantial additional costs” can only be understood in relation to the standards’ projected benefits. Moreover, Mr. Holder is legally obligated to analyze the costs and the benefits of the new standards together: he cannot give greater emphasis to one half of the calculation than the other. By failing to perform proper analysis, the Attorney General is delaying the reform mandated by a unanimous Congress in passing PREA—and he has already missed his statutory deadline for issuing a final rule on the standards by more than two months.

Prisoner rape is far more a legal and moral issue than a financial one. Since cost considerations are impeding reform, however, it is worth taking a closer look at the true financial implications of sexual abuse behind bars. There are at least two ways in which the Department might try to estimate the value of reducing sexual abuse in detention. One—called “contingent valuation,” and used frequently by environmental economists—seeks to assign dollar-values to goods not traded in the marketplace. Using its techniques, a recent study concluded that the public values the prevention of a single incident of rape or sexual assault at $237,000, a greater worth than it places on preventing any other kind of crime except homicide.

Alternately, the Justice Department can try to quantify particular, identifiable savings and benefits of preventing prisoner rape, and weigh them against particular, quantifiable costs. The costs (no matter how benefits are measured) are the investments needed by corrections systems to comply with the recommended standards, divided by the Department’s estimation of the percentage by which the standards will actually reduce sexual abuse in detention. As for the benefits, a partial list of those to be considered might begin with the medical cost of treating rape victims, which must be shouldered by corrections systems. This is much more expensive in the prison setting than in the general community, because inmates must be transported to often-distant hospitals and escorted the whole time by security staff. And it is a cost that must be paid, not for every victim of prisoner rape, but for every instance. We can deduce from the new BJS study that victims of sexual abuse in detention suffer an average of three to five incidents apiece.

Continue reading "To AG Holder: Please step up to the plate on prison rape" »

July 21, 2010

The new globalization of "gay" "pride"


Gay pride events went global a long time ago. For years, Stonewall-timed marches and festivals have been taken up in other countries, in what was a clear importation of norms and concepts from the U.S. This year I've noticed a real shift in the balance: ideas and debates are moving in the other direction. Partly that is because of breakthroughs, especially in Latin America. In addition, concerns from beyond Euro-American borders are reshaping the contours of "gay" issues and implicitly questioning what it is, exactly, we are proud of.

The organizers of Toronto Pride, for example, made the boneheaded decision to exclude the Queers Against Israeli Apartheid group, triggering such an outcry that they had to back down. Protests against Israeli occupation policies also reached San Francisco and Madrid. As world opinion condemning those policies mounts, lgbt pride events will probably continue to be venues for expressing solidarity with Palestinians, and/or contesting whether this is a "gay issue."

Tel Aviv University Law Professor Aeyal Gross provides one concrete reason why it is. Gross, who marched in Tel Aviv Pride behind a banner saying "There is no pride in the occupation,"  describes how the Israeli government attempts to use its degree of support for lgbt rights as a distraction from its policy toward the Palestinians. "Victories for civil rights ... are quickly co-opted by the government in its efforts to present Israel’s liberal credentials. Gay rights have essentially become a public-relations tool."

Scott Long, head of the lgbt rights program at Human Rights Watch, makes a different point, arguing that the most significant form of legal oppression for lgbt people worldwide comes from criminal laws, themselves a legacy of both the old and the new colonialism:

As Americans, we can easily become accustomed to thinking that globalization means never having to go anywhere where you can't buy a coca-cola product. The language of "gay rights", also, has seemed like a U.S. export, even though there are queer-marked or -identified people in every culture. A truly global discourse of rights will, however, inevitably change the conversation.

January 26, 2010

New Orleans police use "crime against nature" law to harass sex workers

Two web sources - Colorlines and - are reporting that New Orleans police are using the old Louisiana state sodomy law to increase the penalties imposed on (mostly) women convicted of prostitution from a misdemeanor to a felony, creating absurdly harsh punishments, based on the type of sexual activity involved. Wait, you may say, what about Lawrence v. Texas, the Supreme Court decision that ruled such "crime against nature" laws unconstitutional? Lawrence, however, specifically excluded commercial sexual encounters from the ambit of constitutional protection that it recognized for consensual sexual acts between adults. And the Louisiana statute specifically criminalizes solicitation for sodomy for payment. As a result, the state can argue that this portion of the law is not affected by Lawrence. (Like several other states, Louisiana did not repeal its sodomy law after the Supreme Court ruling.) Or, you might have thought that sodomy laws applied only to same-sex activity. Wrong again - sodomy at common law was defined the way that Louisiana defines it: as oral or anal sex between any two persons. 

The result: sex workers in New Orleans who are arrested for soliciting johns for oral (or anal) sex are charged with felonies; those who don't mention or can't be tricked into mentioning blow jobs are charged only with misdemeanors. Ridiculous -- except if you're sent to prison for five years and then have to register as a sex offender when you are released.

This ought to be challenged as an outrageous equal protection violation - essentially imposing radically different penalties for the same behavior, for no rational reason. It's also a dramatic illustration of how local power structures can exclude the least powerful strata within a minority group from protections, such as the impact of the Lawrence decision, that protect others within the same group.

From the report in Change:

Normally, a first-time prostitution conviction is a misdemeanor leading to less than six months jail time. But Jordan Flaherty reports in Colorlines that many New Orleans sex workers are being charged for selling oral or anal sex under the crimes against nature law, which carries a first-time felony penalty of up to five years prison time and requires them to register as sex offenders.

When used against sex workers, these controversial registries, created to keep communities aware of child molesters, become a severe rights violation that endangers an already vulnerable population, and wastes resources that could be directed toward dangerous offenders. The New Orleans Police Department's own website on sex offender awareness states that only 4% of sexual assaults are perpetrated by women -- yet in New Orleans, women make up the vast majority of crimes against nature convictions, which account for a whopping 264 out of the city's 861 actively registered sex offenders, according to registry statistics provided by LA state police spokesperson Doug Cain.

Though the registry doesn't keep track of how many of these crimes against nature were for solicitation of sex, it's safe to assume that we're looking at convictions for sex workers...

Josh Perry, a former New Orleans public defender, estimates that about half of prostitution arrests get tried as crimes against nature. This is up to the discretion of the police and district attorney, and sex workers and their advocates allege the harsher law is disproportionately utilized against black and transgender women.

Flaherty reports an array of problems, such as that women registered as sex offenders are excluded from regular storm shelters... The sex offender shelters lack separate safe spaces for women... Furthermore, since a crimes against nature conviction is a felony right of the bat, unlike a normal prostitution conviction, these women -- who in many cases turned to sex work due to poverty and a lack of other options -- are unable to get public assistance such as food stamps. Many of these women are homeless, and if sympathetic non-profits did not allow them to use their locations for a permanent address, they would end up violating the terms of their sex registry.