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Times may or may not be changing for gay people in the criminal justice system--and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about.

Signs of positive change include the recent high profile Matthew Shepard and Diane Whipple cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country. It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, white and college educated--"wholly innocent victims."

Probably the vast majority of openly gay or transgendered people who wind up in criminal court are charged with solicitation or prostitution. Whether swept up by vice squads trying to keep neighborhoods "clean," or caught in the act of soliciting an undercover officer, these often "gender-bending" defendants comprise a large number of weekend arrests in most major cities. They are notoriously badly treated throughout the criminal justice system: police are nasty to them; marshals, court officers and other court personnel often mock them; it is the rare judge or magistrate who treats these defendants with dignity or respect. They are treated badly from a systemic viewpoint as well. For example, in the District of Columbia there is a diversionary program for female prostitutes, through which an accused can avoid prosecution, and a diversionary program for male johns, but no such program for male prostitutes.

Publication Citation

11 Am. U. J. Gender Soc. Pol'y & L. 101-115 (2002)