Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement

45 Pages Posted: 8 May 2019

See all articles by Kelly Strader

Kelly Strader

Southwestern Law School

Lindsey Hay

Southwestern Law School

Date Written: April 10, 2019

Abstract

Ongoing police undercover lewd conduct sting operations directed at LGBTQ people reveal entrenched law enforcement bias against sexual minorities. The lewd stings are largely pretextual, based upon non-existent complaints and non-provable harm. The resulting arrests and convictions often lead to devastating consequences, including lengthy prison terms, life-long sex offender registration, anti-gay violence, and even suicide. Legal challenges to these operations have proven largely futile, however. Such challenges have relied upon existing doctrines, including entrapment and equal protection, that are too limited, or too difficult to prove, in the context of lewd stings. This article posits that the constitutional criminalization principles articulated in Lawrence v. Texas provide a more effective basis for challenging lewd stings. In Lawrence, the Supreme Court plainly held that majoritarian morality principles do not justify criminal laws. Instead, crimes must be directed at provable harms. Our empirical research on the policies of the Los Angeles Police Department reveals, however, that during lewd stings police target conduct that they believe to be morally offensive rather than objectively harmful. This morality-based exercise of enforcement discretion is unconstitutional under Lawrence, which applies with equal force to both criminalization and enforcement decisions.

Keywords: criminal law, lgbtq rights, equal protection, due process, entrapment, constitutional law

JEL Classification: K14

Suggested Citation

Strader, Kelly and Hay, Lindsey, Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement (April 10, 2019). American Criminal Law Review, Vol. 56, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3369565

Kelly Strader (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
213-738-6753 (Phone)
213-738-6698 (Fax)

HOME PAGE: http://www.swlaw.edu

Lindsey Hay

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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