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Criminal Justice Policy and LGBT Concerns

Thu 18 Aug 2011 In: Comment View at Wayback

Rehabilitation and punishment have always been the twin poles of criminal justice policy. How does this affect LGBT communities? As one might expect, the effects are differential. Lesbianism per se has never been a criminal offence in New Zealand, although there is the matter of the cross-dressing fraudster Amy Bock early last century- and, more darkly, cross-dressing lesbian murderer Eugenia Falleni, who killed her wife after her gender masquerade was discovered. Added to which, there have been lesbian career criminals, such as Sydney's Iris Webberin the 'razor gang' era of the thirties and US lesbian serial killer Aileen Wuornos more recently. However, their sexual orientation was not the core issue in their violent and antisocial behaviour. Gay men have had to contend with the complication that their sexual orientation has been subject to varying degrees of criminal prohibition through the last five centuries over much of the western world. Gay men could be executed if apprehended until the passage of meagre reform legislation in the United Kingdom and elsewhere, which commuted the sentences to long-term imprisonment. Ultimately, secularisation and the ascendancy of evidence-based science led to the decriminalisation in Napoleonic France and its empire, and then the United Kingdom and much of the core British Commonwealth from the mid-sixties onward. Before that happened, homophobic violence and homicide went unpunished and blackmail could occur if one's sexual orientation was disclosed to the wrong parties. Fortunately, that ended. In New Zealand, we were comparatively fortunate to achieve age of consent equality at the same time as decriminalisation- the United Kingdom, New South Wales and Canada weren't that fortunate, resulting in long, drawn-out battles to achieve that basic objective. Since then, there have been other reforms that affect our communities. Rape and sexual violation law are gender-neutral, which means same-sex male rapists are accountable for their crimes and can be punished for them. Same-sex domestic violence has been a criminal offence since the mid-nineties in this country. On the level of consensual sex, all is well as long as we have sex in private with someone, otherwise the Crimes Act and Summary Offences Act come into play. There have been debates over whether or not public sex prohibitions are homophobic in scope, given that heterosexual relationships have had more scope for intimacy and public displays of affection, but not in New Zealand. The transgender community is in a particularly difficult situation. Whakawahine and fa'afafine are vulnerable to accomodation, employment and educational discrimination, and may not be protected under the Human Rights Act 1993. Thus, many have no option other than street sex work for survival purposes. Although the Prostitution Law Reform Act 2003 decriminalised all forms of adult sex work, they may still be caught under violations of the Crimes and Summary Offences Act if drugs, alcohol or violent and antisocial behaviour is concerned. Asthe Human Rights Commissionnoted in their Human Rights and Prisons study, transgender prisoners can be held in gender-appropriate prisons and are entitled to safe imprisonment conditions, but have to pay for their own ongoing hormonal gender reassignment treatment under current correctional policy. They may find rehabilitation opportunities difficult, as do ciswomen, given that women are a small percentage of all prison inmates and existing rehabilitation services are oriented toward male prisoners. (Whether the refusal of government funded hormone treatment is a transphobic and discriminatory policy has arisen overseas. In 2005, Wisconsin passed an Inmate Sex Change Prevention Act, cutting off hormonal treatment to transgender prisoners already receiving it, although it was then frozen by court injunction. The Seventh District Court struck down the legislation, arguing that 'refusal to recognise or provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.' The court recognised that Gender Identity Disorder was a bona fide medical condition and that denial of treatment could lead to physiological complications, depression, suicidality or self-harm. The Seventh Circuit dismissed transphobic arguments that hormone treatment was 'costly', arguing that other expensive treatments or enhanced monitoring would cancel out any transphobic 'savings' made. The defendants did not produce any alternative treatment plan. The American Civil Liberties Union and Lambda Legal Fund have applauded the decision. It will be intriguing to find out whether it is followed here). This leads us to the perennial question at the core of criminal justice policy- rehabilitation or punishment? The Sensible Sentencing Trust wants longer duration sentences in arduous conditions for violent prisoners as a core element of retributional justice. Rethinking Crime and Punishment is more oriented toward early intervention, rehabilitation and addressing social inequality as a cause of criminality. While the Trust hascrusaded around"victims rights", RCP is more oriented toward the context of offending and avoiding repetition of violent and antisocial behaviour through addressing the causes. The Trust has been heavily criticised for its populist conservative bias, and was compromised when David Garrett, former ACT List MP and former Trust spokesperson, was accused of past identity fraud involving a deceased small child. Rethinking Crime and Punishment is critical of current government policy for its overemphasis on short-term punitive expediency and funding cuts for early intervention programmes that affect the welfare of young people from dysfunctional and abusive family backgrounds who might turn to violent and antisocial behaviour, as well as deprivation of social services and educational and employment opportunities. However, LGBT communities don't unequivocally line up on the rehabilitation side of this debate. When it comes to hate crimes or homophobic homicides, it is quite possible that we might be found urging more stringent, long-duration sentences for aggravated assault. And when it comes to diligent intervention, apprehension and long-duration imprisonment of Graham Capill, Catholic clergy pedophiles and other such religious conservative sexual offenders, we do tend to favour the full severity of law. This may be attributable to misapprehension about imaginary 'relationships' between male homosexuality and pedophilia that have been comprehensively refuted by mainstream pediatricians, developmental psychologists and forensic psychologists, as well as lesbian feminist influence on gay male perceptions of the harm and damage that incest, pedophilia and other forms of child sexual abuse constitute. On the other hand, rehabilitation must not be discarded out of hand, given that material deprivation and removal of ameliorative, early intervention educational and psychotherapeutic services can lead to youth crime, violent and antisocial activities, involvement in criminal social networks and recidivism due to high imprisonment rates. It might be viscerally satisfying to 'lock 'em up and throw away the key,' but if the same offender is released without access to meaningful rehabilitation after she or he has served her or his sentence, then they may reoffend- and more victims and their families will have to pick up the pieces. Added to which, there is the perennial debate about 'victimless crimes'. As Rethinking Crime and Punishment noted in a recent newsletter, wholesale drug prohibition is not working as a control and containment policy. Like other New Zealanders, LGBT communities need to view debates over criminal justice priorities from a nuanced and holistic perspective. Recommended: "Denying hormone treatment to transgender prisoners is torture, 7th Circuit rules" Seattle Gay News: 12.08.2011: Rethinking Crime and Punishment: Sensible Sentencing Trust: Human Rights and Prisons: Craig Young - 18th August 2011    

Credit: Craig Young

First published: Thursday, 18th August 2011 - 12:54pm

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