In the book A Theory of Justice, political philosopher John Rawls argues that one principle of justice is equal liberty—that all are equally protected and held responsible by law. It is what we often call “rule of law.” No one is above it and no one is denied its protection.
But the difference between a political theory and reality can often be the same as the difference between day and night. And so it is in the introduction of Queer (In)Justice: The Criminalization of LGBT People in the United States (Beacon Press; 2011), that the book’s three authors—Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock—state:
While it may be comforting to believe that evenhanded enforcement of criminal laws will ultimately produce safety and justice, such beliefs are not grounded in current or historical realities. The very definition of crime is socially constructed, the result of inherently political processes that reflect consensus only among those who control or wield significant influence. It often has more to do with preservation of existing social orders than with the safety of the larger populace.
And to illustrate the point the authors continue by writing that,
For example, many people believe that theft, murder, violent assault, and rape are clear examples of criminal conduct. Yet state-sponsored violence is seldom named and prosecuted as criminal, though it may involve killing large numbers of people, torture, massive theft, and use of sexual violence, and its effects are no less harmful than when those acts are performed by individuals or small groups. The same is true of corporations that destroy not only the lives and futures of individuals but also entire communities, nations, and ecosystems. (pg. xvi)
From there we quickly delve into the horrors visited upon people for their sexual identity, which is often compounded by other factors like their gender, race, class, nationality, and so on. The differential treatment that queer people receive by law enforcement, and the judicial and legislation systems is a testament to just how far off we are from being a civilized nation that resembles anything remotely close to Rawls’ principles of justice.
Chapter one, Setting the Historical Case runs through horrid examples of abuse of queer people—starting with the advent of sodomy laws in 400 BCE to the European colonialization of what is now called the Americas. Colonialists routinely sighted the “sodomy” of the natives to justify subjecting them to nightmarish acts no decent person would ever wish on anyone.
We continue on with a look in chapter two at how “archetypes” are created to cast queers in dehumanizing and demonizing ways such as “gleeful killers” or “lethal lesbians” in order to punish them more severely than we might for heterosexuals. The goal here is not to see queers as people but as deviants and degenerates who are deviant and degenerate because of their sexuality. One interesting point made in this chapter is how queer serial killers—like Ed Gein or Jeffrey Dahmer—find their crimes blamed on their non-heteronormative sexualities but,
Of course, no such equivalence is suggested in the case of white heterosexual men who kill. Ted Bundy, for instance, who confessed to thirty-six murders of women before he was executed, and was suspected of committing many more, was never presumed by police, prosecutors, or the media to have killed because he was heterosexual. Nor was his desire to have sex with corpses of the women he’d murdered considered evidence of depravity intrinsic to heterosexuality. (pg. 31)
Chapter three of Queer (In)Justice looks at historical examples of policing gender and sex with infamous incidences like Stonewall or the Rainbow Lounge in Fort Worth, Texas. One important point stressed on many of the raids of bars and private clubs was that while law enforcement sited excuses like liquor laws, it’s notable that rather than carrying out their inspections during the day and targeting the owner they wait until at night when the places are full and then carry our violent assaults that often include various slurs hurled at the patrons.
The authors also looked at various incidences like targeting LGBT people in the 1980s while using the AIDS epidemic as a pretext to usher in “social order,” and of course there are the examples of targeting men in drag, or female prostitutes (and the high incidences of rape attributed to police officers is also covered).
Chapter four moves on to how LGBT people are treated differently in the courts where being gay is often explicitly criminalized, or used to deny queer teens protections heterosexual kids get in some states via “Romeo and Juliet laws.” On one occassion when a gay man is killed the officers, without justification, look to other homosexuals as suspects and even go so far as to manufacture a confession and secure the imprisonment of an innocent man. Other incidences include a prosecutor who said, “Sending a homosexual to the pentitntiary certainly isn’t a very bad punishment for a homosexual.” (pg. 89) The basis of this bigoted comment is the assumption that prison is a homosexual’s heaven, which leads into the next chapter.
The next chapter, Caging Deviance, deals with the struggles of queers in the prison system, and even straight people who, for various reasons, find them sharing in the sufferings of queer people and all because of a bigoted system that is largely built around policing sex and barbaric notions of gender norms. The rapes, the verbal and physical assaults, the lack of sufficient medical care, the indifference by administration officials, the targeting of queer people for sex and gender policing, and more bring to head a simple truth: our prison system needs an entire overhaul. When LGBT people can go to prison for non-sex related crimes and wind up making comments like, “I have been gay all my life and never have I once felt as degraded, humiliated or questioned my own sexuality, the way I look, etc. until all of this happened,” or, “Point blank, this institution is ran [sic] by homophobes, and the rules instated here are based on your sexual preference not what is right or wrong” (pg. 110) then something is terribly wrong.
The sixth chapter deals with the problems of how the legal system responds to violence against LGBT people, including “hate crime laws.” While the following quote was provided in the concluding chapter it was on hate crime laws and proved very apt: “Sentencing enhancements won’t get police to investigate crimes they don’t take seriously to begin with . . . And we already know that the legal system sees people of color, women, sex workers, immigrants, and the homeless as more deserving of punishment.” (pg. 144) LGBT domestic violence is also shown to be problematic because of the “archetypes” associated with gender norms and sexuality. When a homosexual couple is involved in a spat police may threaten to arrest both parties unlike with heterosexual couples where the male is more likely singled out, and rightly so when he is the abuser. And some “butch” lesbians may feel helpless, as is born out with the experiences of others because officers project a warped sense of masculinity into them. Something similar is experienced by gay men as one man attested:
During a beating I had to call 911 and have the police come and save my life. When the cops arrived they laughed at me. I was bloody, bruised, crying, and my clothes had been cut and ripped . . . It was by far the worst and most humiliating experience of my life. I will never trust the police again. (pg. 135)
Back to the beginning comment made in the introduction: so long as law and justice are nothing more than “political processes that reflect consensus only among those who control or wield significant influence” we should not expect to see rule of law and the principle of equality practiced consistently and fairly. When power and wealth is distributed in ways that a minority rules over the majority we should expect to see flagrant abuse of power and a perversion of justice. This is precisely why when we see state figures like Slobodan Miloševic, Jean Kambanda, Saddam Hussein, and Moammar Gaddafi singled out for punishment of their heinous crimes we don’t see people like Hashim Thaçi, Paul Kagame, any US president since WW2, or leaders of the United Kingdom or Israel punished for their crimes.
Changing existing laws or new ones, as helpful as they are in the short term, will not address the fact that these problems are systemic, and until LGBT people, people of color, women, etc. are equally empowered through societies political and economic systems, then whoever is in control, or dominating our social systems, will continue to augment their power at the expense of others. How we go about creating an authentic democracy, what it would look like and more is beyond the review of this book—though the book does advocate “multi-issue, nationally linked community-based organizing”—and while I personally find many hopeful ideas have been proposed in the various “participatory society” debates, hopefully this will be explored by a wide-range of groups, organizations, networks and coalitions ranging from LGBT issues to the economy to war to the environment to immigration to race and culture and more. And this needs to be answered soon if we are to end the injustices we currently endure.
Queer (In)Justice is a very informative book, and a must read, for those who have a heart to see what the LGBT community have been enduring for far too long.
Michael M’Gehee is an independent writer and working class family man.