hunter of justice

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

UPDATE: Hate crimes bill passes Senate, heads to POTUS

The final Senate vote on the hate crimes bill is expected to occur this afternoon. The hate crimes language is a provision of the Department of Defense Authorization Conference Report. A cloture petition was filed last night, and the vote on cloture will be this morning. It is likely that debate on the bill will follow the cloture vote, and the final Senate vote on adoption of the Report will occur in the afternoon.

UPDATE: The Senate passed the bill late this afternoon, including the hate crimes provision, by a vote of 68 to 29.  It now goes to the White House for the President's signature.  It is the first federal law to explicitly prohibit discrimination based on sexual orientation or gender identity.

According to HRC's summary:

Under the legislation, federal prosecutors could step in to try violent
hate-crime cases if local authorities cannot or will not secure an
appropriate conviction. It also opens up federal funding for law enforcement
to handle the typically high cost of investigation and judicial proceedings
in such cases, and would make grants available for training and prevention
programs at the local level.

The Laramie Project Ten Years Later

By Guest Blogger Marc Poirier

Last night I was fortunate to attend one of the world premieres of The Laramie Project Ten Years Later, at Alice Tully Hall in New York City.  I say "one of the world premieres" because this new play, about the community of Laramie, Wyoming, ten years after the  brutal murder of Matthew Shepard, premiered simultaneously in 150 venues, in all 50 states and 14 countries around the world.  The performance was preceded by a simulcast from Alice Tully Hall to all the 150 theaters, with brief addresses by Glenn Close, by Judy Shepard, who is Matthew Shepard's mother, and by Moises Kaufman, the play's director.  There  followed 150 distinct performances of the play, by 150 different companies.  The 150 theaters were then relinked for a half-hour session of Q&A, live from New York and remote by twitter.  I will return to this remarkable melange of local and global.

The Laramie Project Ten Years Later stands on the shoulders of and is in some ways a sequel to an earlier play, The Laramie Project.  Both plays were written by Moises Kaufman and the Tectonic Theater Project, based on interviews as well as found texts such as letters, media reports, and transcripts of legal proceedings.  In the aftermath of the brutal attack on University of Wyoming student Matthew Shepard -- he was robbed, beaten, tied to a fence, and left for dead on October 6, 1998, and died on October 12, 1998 -- the city of Laramie, Wyoming, became a focus of national media attention.  The members of the Tectonic Theater Project traveled to Laramie , where they interviewed members of the community and observed events around the trial and sentencing of his murderers.  The Laramie Project-- the earlier play is the one I am still taking about -- is comprised of dozens of characters, including the actors themeselves as they interact with the citizens of Laramie.  It is a compelling story, and one that pretty much effectively plays itself. I have seen it performed by my local high school theater as well as in a slick HBO production.  In important ways, I favor local high school productions, for reasons that will become apparent.

It would be easy to say that the earlier play is about the murder of Matthew Shepard. I think this is inaccurate.  The play is about how a specific community reacts to a specific incident of violence and murder.  The citizens of Laramie, its clergy, the local and national media, the police, the apparatus of the law, the witnesses, the murderers themselves, all tell stories about what happened, who those involved really were, and who the community of Laramie is, as reflected in violence and in the community's reaction to violence. The presence of the interviewers/actors as characters in the play only serves to remind the audience, over and over, of the artifactual nature of the story being retold, first to the actors, then on the live stage to the audience.

The new play, The Laramie Project Ten Years Later, was born of return trips by the members of the Project to Laramie to investigate what Laramie was like now.  The same techniques were deployed.  Once again, the play is entirely a collage of interviews and found texts. I hesitate to call the new play simply a sequel, though.  It seems to me not so much about what happened next as about the natural evolution of the process of telling stories about a community's identity in the wake of violence. I will identify here three themes that stood out -- revisionism, the role of law, and the interplay of local and global, informal and formal, forms of storytelling and reenactment.

Ten years ago, for many characters, talking to outsiders about the murder seemed important, either as a personal catharsis or to establish what kind of place Laramie was. Now many characters seem to want to put the whole incident behind them.  They do not want to acknowledge that, whatever else Laramie might be about, its identity is also now permanently marked with the murder of Matthew Shepard. While the Project is back in Laramie, a local newspaper editorial denounces the group as misrepresenting and hijacking the true spirit of the community.  At a cocktail party, one resident after another confirms that the murder was not a hate crime at all, no, but merely a robbery gone wrong under the influence of methamphetamine.  This version was bolstered by an earlier expose by ABC's 20-20, which also argued that the murder was not a hate crime. Just as ABC had interviewed murderer Aaron McKinney, in the new play we see a member of the Project interviewing McKinney.  Part of McKinney's long, confused, rambling conversation suggests that he now thinks he killed Shepard because Shepard was a sexual predator.  His current prison environment is honorable, it seems, and it allows violence against sexual predators. 

Meanwhile, many other residents insist that Shepard's murder *was* a hate crime.  They are shocked and angered by what they see as dishonest attempts to exonerate the community.  They see the alternate versions of the murder as some kind of extended cover-up.  For example, the police who were invovled in the investigation point out that the version of the murder exculpatory to the community has no basis in the facts they discovered and that were introduced at the trial.  Citizens and the visiting members of the Project alike are outraged that these facts are being obliterated.  A folklorist from the state university explains in dry but chilling academic terms the way in which a community uses the form of rumor to ignore facts, close up gaps and retell its identity.  

Many of those outraged by the murder also insist that the community address the crime, not only by telling what they see as the true version of it, but by responding formally through law.  The demand for legal responses as a way of fixing the story of Matthew Shepard has occurred at many scales, as the later play shows.  At the local level, we learn, as the result of agitation by four faculty and administrators, the University of Wyoming ten years later adopts a domestic partnership policy -- though by a 6-5 vote and with a provision barring implementation until the University's finances improve, because of the supposed additional expense incurred by domestic partner benefits.  At the statewide level, one lesbian motivated by the murder gets herself elected to the state legislature, and observes -- presented through the words of three remarkably different Republican state legislators -- the debate and eventual defeat of a state Defense of Marriage Act.  In the play, the character of Judy Shepard calls for an enactment of a federal hate crimes bill.  During the long years it has been pending, it was renamed, and it now carries the name of Matthew Shepard.  The character Judy Shepard also explains why she continues the fight for LGBT justice as a way of keeping Matthew Shepard alive -- not the young man Matt, who was murdered, but another "Matthew Shepard" who lives on in contested memory, story, and law.

This last scene was especially moving because the real Judy Shepard was right there in the audience. Later, during the post-performance Q&A, she announced that the United States House of Representatives had adopted the Matthew Shepard hate crimes bill just this past Friday, and that she anticipated that it would become law very soon.  The real Judy Shepard's voice quivered with emotion at this moment in just the way that the voice of the stage Judy Shepard had quivered with emotion a few minutes before.  Reality confirmed theater.  Or was it the other way around?

The Laramie Project Ten Years Later helps us to appreciate that calls for legal responses to a hate-motivated murder, ten or eleven years out, are also and intrinsically part of an ongoing struggle to tell and retell a particular history, so as to define the collective identity of a set of communities.  The laws called for -- hate crimes legislation, anti-discrimination legislation, the repeal of Don't Ask, Don't Tell, relationship recognition -- all would officilaly recognize a particular verison of who LGBT folk are and who their community is.  The later play helps us to recognize that in the inevitable political process that generates laws in a democracy, new, more just laws are often demanded by telling and retelling stories of injustice and martyrdom, such as the hate crime version of Matthew Shepard's murder.  The scene in which the Wyoming legislature debates a state DOMA is emblematic of the relationship of storytelling, legislation, and identity.  We hear three accounts from the three Republican legislators -- (1) "marriage is and always has been between one man and one woman, and furthermore our children will be messed up if we deviate from this practice by failing to define marriage constitutionally in this limiting way"; (2) "my daughter is a lesbian, she and her partner are raising a child, and this amendment would hurt them and people like them to no useful purpose"; and finally (3) delivered by a powerful politician who turns the tide against the amendment, "What would enacting a DOMA say to us and all who are watching us about who we are as the state of Wyoming?"

I will close this blog post with reflections on three moments from the post-performance Q&A.  Someone asked about the difference between theater and media performances, such as the HBO verison of the earlier play.  Several members of the Project responded.  They stressed the importance of local productions, productions in high schools, productions that force live cast members and those who know them and live in the same communities, to deal with the question of LGBT violence and the community's varying responses to it.  This response is spot on.  Live theater, especially local theater, offers an immediacy and access that is obscured when television or film turns performances of critical social dialog into entertainment.  Plus, television and movie are corporate and passive, local theater is small, live, and potentially interactive.   Anyone pretty much can put on a play.  Hence the genius of having 150 simultaneous distinct premiere performances, rather than one authoritative simulcast premiere performance. 

I have had students in my Law and Sexuality seminar read The Laramie Project from beginning to end -- not at home alone, but aloud in a group over some three hours, as a class project.  Making them take on the various characters and viewpoints depicted forces them to confront the fact of LGBT-directed violence and the community's stories about violence in a personal way.  It gives them a chance to explore emotionally and empathetically the themes at issues. Not by accident, in the Q&A, Moises Kaufman repeatedly referred to the importance of empathy to the larger project.

Come to think of it, local theater is also represented in another major event of this just past long weekend, the National Equality March.  I was there.  I won't go into details, except to note that Judy Shepard spoke, calling for justice to a crowd of tens of thousands who showed up and marched and listened together.  In the earlier play, the one depicting Laramie immediately after the assault and murder, there were many such public performances of one kind or another -- the watch as Matthew Shepard lay dying in a hospital in Fort Collins, parades, demonstrations and counter demonstrations and, last but not least in terms of public theater,the trial and sentencing of Russell Henderson and Aaron McKinney.  

The second Q&A moment involved what was supposed to be the last question, from a member of the live New York audience. He asked how we should understand Aaron McKinney.  Moises Kaufman politely but firmly refused to answer the question.  in the play, McKinney's long conversation is unclear in many respects. Was it a robbery or a hate crime, after all?  What role did Henderson really play?  What should we make of the word "nazi", which McKinney had tattooed on his back while in prison?  McKinney says he feels the wrong kind of remorse; what kind of remorse does he feel?  Kaufman was right to squelch a potentially definitive answer to these questions.  The whole point is that the dialog, about truth and self-deceit, justice and injustice, is always fragile and subject to further conversation and revision.  Much as we would like to fix the violence -- either with a final, true meaning, or a final resolution of injustice through new laws -- it cannot be fixed, nor can we put and end to the stories we tell about it.

The final question of the evening -- which came in under the wire as an extra question, since the members of the Project did not want the last question to be about McKinney -- came from an anguished mother in the New York audience.  She pointed out that, despite the apparent impending success of federal hate crimes legislation, a young gay man had been brutally assaulted the night before on the streets of Queens.  (This was the same day as the National Equality March.)  She then asked her fifteen-year-old son to stand up next to her, announced that he was straight, and that it mattered very much to her what kind of world he grew up it.  Judy Shepard (the real one) was on stage at that point, and one could feel the emotional current between the one mother and the other.  It was a moment of extreme empathy, shared by the whoel audience.  This moment could not have been planned, it was electrifying and hugely theatrical, and it was the last moment of the evening.  

Wondering what happened to the hate crimes bill?

According to an update from HRC Backstory, it could be law as early as next week -

Earlier this evening [Oct. 6], the U.S. House defeated a Republican motion to instruct conferees seeking to strip the hate crimes provision from the Defense Authorization bill to which it is attached.  The vote was 178 to 234.  You may recall that in July, the Senate voted 63 to 28 to add the provisions of the Matthew Shepard Hate Crimes Prevention Act to the defense bill.  Nearly identical legislation passed the House earlier this year on a bipartisan vote of 249 to 175.  Conferees are expected to retain the hate crimes provisions in the final version of the conference report and today’s vote is a strong show of support for the hate crimes language.

So what’s next?  House Conferees have been appointed and a vote on the final conference report in the House is expected on Thursday.  The Senate action on the conference report should follow next week and then the bill will go to President Obama for his signature.

Update from New Delhi - Government ducks questions of appeal of sodomy law ruling

The Indian national government announced that it would take no position on the correctness of an appellate court decision declaring the sodomy law unconstitutional, but instead would defer to the Supreme Court's assessment. A memorandum prepared for the Cabinet had recommended that the government not ask the highest court to review the decision. It seems from the report below that there is some confusion about exactly what the Cabinet's decision means, beyond please-make-this-go-away.

From The Economic Times:

The Union Cabinet, chaired by Prime Minister Manmohan Singh, considered the report of the three-member Group of Ministers formed on the issue and decided that Attorney General G Vahanvati will "assist" the Supreme Court on it. "The Cabinet decided to ask the Attorney General to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgement of the High Court," Information and Broadcasting Minister Ambika Soni told reporters.

To a volley of questions, she repeated the same formulation of her statement and said the Supreme Court can decide if the High Court was "right or not" in decriminalising gay sex. She refused to say anything more on the issue, maintaining that she was not authorised to "explain" further as the matter related to Cabinet proceedings.

The Cabinet decided against taking any stand on the issue to avoid getting caught in any controversy, a minister said, explaining why it was left for the Apex court to take a view.

Indian government unlikely to appeal decision invalidating the sodomy law

Indian government documents made public yesterday indicate that an appeal of Naz Foundation v. Government of Delhi is highly unlikely. In Naz, the High Court of Delhi ruled that the country's sodomy law, a holdover from British colonial rule, violated the national constitution. A joint document from three ministries recommends that the government not challenge the ruling. Prime Minister Manmohan Singh will make the final decision whether to direct that an appeal be filed. From the Hindustan Times:

The three ministries had been directed by the Prime Minister to firm up the government stand, following the opposing stands taken by the Home and Health ministries before the high court last year. The  [memorandum], likely to be put up before the Union Cabinet on Thursday, was prepared after meetings between the Home, Health and law Ministries. It states there appeared to be no “legal error in the judgment, which has not struck down the entire Section 377 of the Indian Penal Code (IPC)”, given by the high court on July 2.

The [recommendation was] prepared on the basis of the opinion given by union Law Secretary TK Vishwanathan. “Since the court has not struck down the entire section, and has confined itself to consensual acts in private, it will be difficult for the government to question the HC judgment,” the Law Secretary stated.

Will new constitution in Zimbabwe decriminalize homosexual conduct?

Led by the fiercely anti-gay Robert Mugabe, Zimbabwe has long been a nightmare for lgbt people.  Male homosexual sexual conduct is illegal there, a status reaffirmed by the nation's highest court in a prosecution of one of Mugabe's predecessors, Canaan Banana [S. v. Banana, 2000(3)SA 885 (ZS)].

This summer, however, meetings have been ongoing to draft a new constitution. Anti-democracy thugs disrupted the conference last month, but it then resumed. Given that Mugabe is still in power, it may be unrealistic to expect that the drafting project will lead to anything more than words on paper. If the process does continue to completion, though, there will be a referendum on the new constitution next year.

AIDS and lgbt activists have been seeking to invoke the kinds of protection against discrimination based on sexual orientation found in the South African constitution to achieve greater legal protection in Zimbabwe.

According to this dispatch from the Guardian, they plan to use the argument that criminal laws impede efforts to fight AIDS, an urgent issue there and throughout Africa, and the subject of a keynote speech at last year's International AIDS Conference:

Gay men and lesbians in Zimbabwe are hoping for an end to years of "hysterical homophobia" by having their rights enshrined in the new constitution.

Sexual acts between men are outlawed in the socially conservative country (there is no legal reference to women) and the president, Robert Mugabe, has encouraged a climate of hostility by condemning homosexuality, describing it as a western import.

His opponents in the Movement for Democratic Change are more supportive of gay rights, raising hopes that Zimbabwe's constitution could follow that of South Africa, the first in the world to specifically outlaw discrimination on the grounds of sexual preference.

Keith Goddard said the group Gays and Lesbians of Zimbabwe (GALZ) – of which he is director – had tried twice to get sexual orientation included in the constitution.

"Now, with the new constitutional review, we are pushing again for sexual orientation," he said. "The National Aids Council has moved forward enormously from its original policy, and in its strategic plan for 2006-10 it specifically calls for the decriminalisation of homosexuality because punitive measures have simply driven the community underground and make this hidden population difficult to reach.

"So I think we can use it on the grounds of health and HIV/Aids interventions to try and argue the issue. Arguing it on religious or moral grounds is not going to get it anywhere. We live in hope. I think we've probably got a 50:50 chance."

UPDATE - Senate adopts hate crimes language, which leads us to ... fighter jets

UPDATE July 21: The Senate voted to drop the funding for F-22s from the bill. The legislation will now go to conference committee. If the conferees strip out the F-22 funds that are part of the House version and keep the addition of the hate crimes language, as seems likely. there will be clear skies for the bill to land on POTUS's desk and be signed.

+++++++++

UPDATE: By a 63-28 vote, the Senate invoked cloture, then voted to add the text of S 909 to the Defense Authorization bill. The next series of bumps will arise if $1.75 billion in funding for F-22s is not dropped from the bill. President Obama has declared that he will veto the bill if it includes "wasteful spending," which seems to be code for no more F22s. Even if there is a veto, however, advocates remain confident that the hate crimes language will eventually make it through.  More background here.

++++++++++++

Senator Leahy has just introduced S 909 - the Mathew Shepard hate crimes bill - as an amendment to the Defense Authorization bill. As is customary in the Senate, sporadic debate will occur until a vote is held on the cloture petition, which - if it secures 60 votes in support - will set an end point (a maximum of 30 hours of debate) to the debate on the amendment. The cloture vote could happen as early as tomorrow. The Leadership Conference on Civil Rights is predicting that the vote on the substance will occur on Friday.

The same bill passed the House in April by a 249 to 175 vote (HR 1913).

Openly gay man runs for office in India, as cultural change intensifies

From the Washington Post, following up on last week's decision by the High Court of Delhi declaring India's sodomy law unconstitutional:

Popping out of an auto rickshaw, Manohar Elavarthi unloaded a backpack stuffed with protest posters. Soon he would be rushing to a street demonstration, one that would bring together low-caste Dalit activists, Gandhians, cross-dressers and members of domestic workers unions.

Elavarthi aspires to be the first openly gay man elected to a major political office in India, like Harvey Milk in the United States. Elavarthi is credited with being the first gay figure in India to build a mainstream political coalition across a wide spectrum of historically marginalized groups.

"Our dream for Indian politics is to build a common front of lesbians, untouchables, eunuchs and low-paid workers -- people who really need a voice in this country," said Elavarthi, who has received death threats for his views, largely from right-wing religious groups and police. "India -- the new India -- is really changing. We need to build a party around social justice for minorities. It would be a sign that India is a true secular democracy."

India, a nation of 1.1 billion people, is in the midst of an unprecedented debate over homosexuality, part of a wave of social change led by the younger generation in this traditional society. Modern India's youths are more economically mobile and independent than any generation before. Across the country, there is growing political pressure from a diverse coalition of college and law students, activists, artists and even mainstream politicians to overturn laws banning homosexuality.

In a groundbreaking ruling issued Thursday, the Delhi High Court decriminalized homosexuality[;] celebrations were held in the streets of major cities....

In a major shift, the government recently called a meeting of top officials to talk about the 150-year-old statute, known as Section 377. New Cabinet ministers appointed after the recent elections could bring "new thinking" on the law, Home Minister P. Chidambaram said last week, the Indian Express newspaper reported. Those in favor of amending the law argue that it violates human rights enshrined in the constitution. They also say that keeping gays closeted limits awareness about safe sex. HIV/AIDS affects an estimated 2.5 million people in India.

In the last weekend of June, hundreds of gay rights supporters danced and marched in the sweaty summer heat of New Delhi and in the southern cities of Chennai and Bangalore. One parent held up a sign that read "Proud Mother." Some young Indians chanted "Long Live Queeristan." Others sang "Gay Ho" to the tune of "Jai Ho," the megahit from the Oscar-winning movie "Slumdog Millionaire."

Cross-dressing men were decked out in sparkling saris and nose rings. It was the second year for the pride parades, and more people attended this time around. A fresh crowd of younger gay activists and heterosexual supporters of the cause reportedly organized the event.

In Bangalore and outlying rural areas, Elavarthi organized a week-long slate of events in the run-up to the marches, including the country's first gay cricket match, a dialogue with Dalit leaders, a seminar on religion and sexual minorities, and several film screenings and mixers in villages. The gay rights movement in India was once dominated by artists and members of the upper castes. But the movement now seems to be breaking down class divisions and uniting youth culture around human rights concerns....

In daily life, gay Indians suffer forced marriages, high depression rates, physical assault and blackmail -- often by police and underground rings on the Internet. In this nation where most families with the means hire domestic help, middle- and upper-class gay Indians wake up early to move separately into different rooms before household staff arrive. In much of India, parents still choose their children's future spouses, taking into account factors such as caste, skin tone, class and religion. But in some pockets, young Indians -- especially professionals living away from their parents -- have the freedom to decide for themselves.

Elavarthi was born to a farming family in a village in southern India. By the time he finished high school, he said, he knew he was attracted to men. He later realized he was bisexual. "But I dared not tell anyone," he said. After moving to the sprawling city of Mumbai, Elavarthi found a male lover and started living with him.

Elavarthi quickly became an activist and started a counseling center. He also founded a group called Sabrang, which means "all colors" in Hindi. The group reaches out to people from non-English-speaking backgrounds and from lower castes. Elavarthi said he hopes to run for office in next year's local elections and encourage other young gays and lesbians to do the same.

Appeals court in India strikes down sodomy law

In a first for India, the Delhi High Court ruled today in Naz Foundation v Government of Delhi that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization.  The government must now decide whether to appeal to the national supreme court or to accept the decision.  In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose. 

CLARIFICATION: Rex Wockner, who first reported that the decision had come down, has a new post, citing several Indian sources, stating that the ruling will apply to all of India until and unless it is appealed to the Supreme Court and reversed.

A brief excerpt from the 105-page decision:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, 'Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion . . . . 

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants" or 'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution....

Is homophobia the new anti-semitism?

From The American Prospect:

...[Anti-gay] hatred comes in many guises and from many different directions. But there are some underlying themes, enough so that it's possible to talk about global homophobia as a single concept, akin to anti-Semitism. Indeed, worldwide, the rhetoric of homophobia recapitulates the tropes of classical Jew hatred. Gay people are seen as a subversive internal enemy with dangerous international connections. Even in places where they've been cowed into near invisibility, they're viewed as having an almost occult power. They represent modernism and cosmopolitanism, the bete noirs of every type of fundamentalism. ...

Meanwhile, just as the gay-rights movement has been globalized, so has the religious opposition. "There are currently two major sources of homophobic thought globally," says Hossein Alizadeh, the Iranian-born communications coordinator of the International Gay and Lesbian Human Rights Commission. "One is primarily Christian conservative movements that are mainly based in the United States. We see a lot of that fitting into the hatred and violence in Africa, the missionaries that go into different African countries and bring with them the message of hate. The second is Islamic fundamentalism."...

In Iraq, the scapegoating of gays and lesbians as agents of the West has been particularly deadly. "The country was invaded back in 2003, and ever since then things have been going south rather than getting better," Alizadeh says. "People have to blame somebody, and gays seem to be the easiest target. There are lots of comments about how homosexuality did not exist in Iraq before the U.S. invasion. People think the least they can do in order to protect their culture is just to go after gay people and kill them."

... In Africa, despite the near-invisibility of gay people on much of the continent, there's a full-blown gay panic underway, much of it stoked by evangelicals with ties to the American right. Last month, Burundi passed draconian anti-gay legislation, making gay sex punishable by up to two years in prison. Nigeria is currently considering a bill that would criminalize the "coming together of persons of the same sex with the purpose of leaving [sic] together as husband and wife or for other purposes of same sexual relationship." In Uganda, where same-sex relations are already punishable by life in prison, Christian-right organizations have been accusing homosexuals of "recruitment," leading to calls for even more punitive anti-gay legislation.

Kansas jury acquits doctor who performed late-term abortions

After years of investigations and four days of testimony, jurors in Wichita took just 45 minutes on Friday to acquit a controversial abortion doctor of charges that he performed 19 illegal late-term abortions in 2003. Kansas law permits late-term abortions when two independent doctors agree that the pregnant woman would be irreparably harmed by giving birth. Prosecutors charged that the doctor, George Tiller, had an improper financial relationship with a doctor from Lawrence, Kristin Neuhaus, who provided a second opinion in the 19 cases cited.

Dr. Tiller’s clinic is one of three in the United States that perform late-term abortions, and he has been reviled by anti-abortion forces for decades. In 1986, a bomb exploded on the roof of his clinic here, Women’s Health Care Services. In 1991, some 2,000 protesters were arrested outside during summer-long protests; in 1993, Dr. Tiller was shot in both arms by an anti-abortion activist while driving away from the clinic. Protests continue there almost daily.

“It’s been a long ordeal for his patients, Dr. Tiller and his family,” the lead defense lawyer, Dan Monnat, said Friday outside the courtroom. “They’re just happy it’s over.” Dr. Tiller could have faced a year in jail and a $2,500 fine on each of 19 counts.

Two dozen law officers stationed themselves in the courtroom to maintain order as the verdict was read, and spectators, most of whom identified themselves as abortion opponents, were searched before entering. A few appeared to pray, but there were no outbursts. Anti-abortion protesters demonstrated outside the courthouse all week.

The Rev. Patrick J. Mahoney, director of the Christian Defense Coalition in Washington, called the verdict “a setback.” Mr. Mahoney said that had jurors voted for conviction, “they would have put him out of business.” But Mr. Mahoney, who had predicted that the trial would “energize” anti-abortion forces, said it was a “very technical case” that was not relevant to other legal and legislative challenges to abortion.

Assistant Attorney General Barry Disney, who prosecuted Dr. Tiller, said the quick verdict probably resulted from the fact that the issue before jurors was clear and concise. “There wasn’t a lot for them to go back there and argue,” Mr. Disney said.

During testimony, both Dr. Tiller and Dr. Neuhaus, the only witness called by prosecutors, denied that there was anything improper about their financial relationship. Dr. Neuhaus testified that she misspoke during a 2006 deposition when she called herself a “full-time consultant” for Dr. Tiller.

The trial is not the end of Dr. Tiller’s legal problems. The state Board of Healing Arts is investigating a complaint that mirrors the accusations made in the trial.

Source: N Y Times

 What the Times article omits is the connection, however slight, between Dr. Tiller and Govenor Kathleen Sibelius, President Obama's nominee as Secretary of HHS.  The right-wing has gone apoplectic over the Sibelius nomination because of her defense of reproductive rights and ties to Planned Parenthood and to Dr. Tiller. They know each other!  Govenor Sibelius invited Dr. Tiller and his staff to the governor's mansion!  She accepted an award from Planned Parenthood! Oh my!

New Yorkers demand end to porn store arrest campaign

According to Towleroad, a protest is set for noon today at New York's Gracie Mansion, the official residence of Mayor Michael Bloomberg, over what appears to be a campaign by police officials aimed at customers of porn stores, mostly gay. This follows a town hall meeting at the LGBT Community Center, where several hundred people showed up to demand that city officials back off the arrests.

Police have arrested more than 50 men, generally middle-aged gay men who were propositioned by young, attractive men who turned out to be police officers. Why? It seems that after the police arrest a series of men in a given store, the city files suit to close the shop as a nuisance.  And no, these stores are not in outer Queens or remote Staten Island.  We're talking Chelsea. Which is to say, we're talking major property values.

UPDATE: NY Times coverage of the Saturday protest

UPDATE Feb. 22: The demonstrations continue

Background from Gay City News, which has been bird-dogging this story:

"Generally, these are people who are not working as prostitutes and even when they are confronted by the undercover they may be intending to have sex, but not take any money," said Linda Poust Lopez, a supervising attorney at the Legal Aid Society, who is representing one of the five men busted in Unicorn DVD, located at 336 Eighth Avenue near 27th Street.

At least three of the men have pleaded not guilty. Attorneys for the other two known to have pleaded guilty either declined to comment or did not respond to a request for comment. As Gay City News went to press, the remaining two men had not been identified.

The five arrests are part of a wave of such arrests that swept through Manhattan porn shops in 2008, with cops busting at least 27 men in at least six porn shops last year. Police made at least 25 other arrests from 2004 through 2007, including at least 23 at Video, Video, Video, a porn shop that was located at Eighth Avenue and 34th Street.

Citing those prostitution arrests, all of which were done by undercover officers, the city brought nuisance abatement lawsuits against seven of the eight businesses seeking to close them. Four of the seven lawsuits came in 2008. The city sued Unicorn DVD on January 14 of this year. Two of the businesses, including Video, Video, Video, were shuttered, while the other four stayed open under agreements with the city that restricted their operations.

Resolution for global decriminalization of same-sex sex going to UN General Assembly

Originally set for today, the presentation to the UN of a resolution for world-wide decriminalization of homosexual conduct has been rescheduled for next week.  The declaration has fewer sponsors than the
86 countries (nearly half the nations on earth) that still ban homosexuality. Taking it to the UN is seen as the first step in a campaign to achieve explicit human rights protection for lgbt people in the international forum.

The effort is being led by France with the backing of all 27 member states of the EU, plus non-EU European nations including Norway, Switzerland, Iceland, Ukraine, Andorra, Liechtenstein, Bosnia and Herzegovina, Croatia, Montenegro, Serbia, Armenia and Macedonia.

It also has the support of the Latin American states of Argentina, Brazil, Chile, Ecuador, Mexico and Uruguay.  Three African nations – Gabon, Cape Verde and Guinea-Bissau – are endorsing the declaration so far.  Other endorsers are Canada, Israel, Japan and New Zealand.

Let's see - looks like all of North America is on board, except for ... could it be the United States?

Thanks for the memories, W. Don't get lost on your way back to Dallas. 

+++++

UPDATE December 18 (NY Times):

The resolution was read by Ambassador Jorge Argüello of Argentina, the first on gay rights ever read in the 192-member General Assembly itself.

Although laws against homosexuality are concentrated in the Middle East, Asia and Africa, more than one speaker addressing a separate conference on the declaration noted that the laws stemmed as much from the British colonial past as from religion or tradition.

Navanethem Pillay, the United Nations high commissioner for human rights, speaking by video telephone, said that just like apartheid laws that criminalized sexual relations between different races, laws against homosexuality “are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.”

Playing politics with sex workers, British version

guardian.co.uk
Belinda Brooks-Gordon

In her speech to the Labour conference this September, the home secretary Jacqui Smith made clear her intention to criminalise clients of "trafficked" sex workers and stated that, from October, she will begin work to outlaw paying for sex with those who are "forced into prostitution at another's will, or controlled for another's gain".

Stirring stuff, yet Smith seems coy about giving the actual figures for trafficked workers. The official figures for the police operation Pentameter 1 showed, that despite 55 forces hunting for them, only 88 women were trafficked. Since it is accepted on all sides of the debate that 80,000 work in the sex industry, then the number of those trafficked amounts to 0.11% of those in sex work. According to a recent parliamentary answer, Pentameter 2 improved on that performance with the recovery of 167 victims of trafficking – but that still represents only 0.21% of sex workers.

In other words, the impression Smith gives that the sex industry is rife with trafficking is highly misleading. Meanwhile, criminalising the clients – who often tip off police when they have qualms about a worker's status – of that small percentage will only make things worse for the workers.

Smith wants to remove the word "persistent" from kerb-crawling laws as, in her view, "once around the block is once too many – and so we'll make kerb-crawling punishable as a first offence". This will create a new law for police to stop anyone at will. Smith also wants to give councils and the police new powers to close down brothels and clamp down on exploitation. But this only displaces the trade and puts women on the street where they are less safe.