LGBTQ individuals often face significant challenges when navigating the criminal justice system either as alleged perpetrators or as victims. The system can be overtly hostile, particularly to transgender individuals. Police harassment or brutality against the LGBTQ community, especially transgender individuals, is common. Twenty-two percent of transgender individuals who responded to a 2011 National Transgender Discrimination Survey reported being harassed by the police and the rate was even higher for transgender people of color. One out of two survey responders were uncomfortable asking the police for help.
If you are harassed by the police, you are entitled to get information about the officer involved, although you should not put yourself in harm’s way to do so. Police are supposed to provide their badge number and names when asked. If they question you or harass you, you can also ask the police if you are free to go and if they say yes, you can leave. Individuals who become subject to false arrest, physical attacks or groping can bring lawsuits. Sometimes these are successful, but you should consult an experienced attorney before bringing suit. You should also be aware that the time frame for bringing a civil suit against the government or a government employee is especially short, and varies from state to state.
Although most anti-gay sodomy laws have been stricken, there are other statutes related to sex and HIV that are commonly enforced in a discriminatory way. Additionally, if convicted and imprisoned, LGBTQ prisoners are often subject to abuse or rape in disproportionate numbers compared with the general population. Transgender prisoners and LGBTQ prisoners with HIV, in particular, may experience difficulties obtaining adequate healthcare in prison. Further, if LGBTQ individuals report that they have been victims of a hate crime, they may face disbelief or more difficulty getting prosecutors to take their cases seriously as the cases of heterosexual victims.
Hate crimes are crimes motivated by an attacker’s bias against the victim. These acts can terrorize entire communities by making members of a particular group fearful. Several states have hate crime laws in place to provide a basis for prosecuting crimes motivated by this kind of bias. Some of these laws include sexual orientation and gender identity or gender expression as the basis for bringing a hate crime charge.
The federal hate crimes law, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, has been amended to include sexual orientation and gender identity. The law allows the government to give grants and assistance to state and local authorities in order for them to be able to investigate and prosecute hate crimes. It can often be difficult to prove bias or animus in hate crimes cases, and this law helps to provide resources toward that end. Unfortunately, if state or local officials decide not to prosecute a hate crime, the federal government cannot ensure that the perpetrators are charged.
Intimate Partner Violence
Intimate partner violence is usually given news coverage in relation to heterosexual couples, but this type of violence is also an issue in the LGBTQ community. Those victimized by an intimate partner are more likely to suffer depression, illness, and substance abuse issues. Generally, this type of violence is about power and control, rather than gender. Each state has its own laws regarding intimate partner violence, including its own system of criminal penalties.
Perhaps because many LGBTQ people have had negative experiences when interacting law enforcement in the past, oftentimes LGBTQ victims of violence are reluctant to report. This issue is compounded by a tendency on the part of many police to disbelieve allegations of this nature by victims who are in same-sex relationships. Of the small percentage of LGBTQ victims who report intimate partner violence, statistics show that in 1/3 of those cases the victim rather than the perpetrator was arrested.
Correctional facilities are supposed to respect the dignity and human rights of prisoners, and protect them from harm. Prisoners’ rights are often not respected, but LGBTQ prisoners are at particular risk for abuse, denial of medical care, and discrimination from prison staff, guards and other prisoners. Transgender prisoners face particularly severe risks. Part of this is because they are frequently placed in sex-segregated prisons based on their sex assigned at birth, rather than in accordance with their gender identity. In many case the prison staff, not just fellow inmates, participate in harassment, abusive physical searches, and sexual assault.
The Prison Rape Elimination Act (PREA), which provides standards that apply to federal, state, and local prisons and jails, was passed in 2013. A state that does not comply risks forfeiting federal funds.