A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
It’s a question I found myself pondering as the markets and world digest the results from last night. By which I mean, four more years for Obama as President, a Republican House and a Democrat Senate. Several billion dollars later, and we’re seemingly back where we started. Obama teased supporters with claims of ‘the best is still to come‘, but unlike the Parliamentary system of government, he is limited by a legislature which was seemingly broken before the election, and is likely to remain broken when the new Congress take up their seats in January.
Moreover, America is still staring down the barrel of a gun at a budget crisis which needs resolving before the year is out.
I made clear yesterday my support for Obama, and my expectation that he would indeed win. Yet, four years on from his first victory, warm words and promises are not enough for this observer. His promise to LGBT voters (seen on this page of his website) was just one commitment – to not be Mitt Romney. Beyond that, he made not one pledge on LGBT rights. Yes, he’s better than Romney. Yes, Romney would have been bad news for LGBT rights, but that doesn’t mean I’m not going to keep poking Obama with a stick.
The Supreme Court
So what’s coming up? Perry and the issue of constitutionality and same-sex marriage is heading to the Supreme Court. Supreme Court Justice, Ruth Ginsberg, has indicated she’s considering standing down (she’s 79) and that means a moderate Democrat could replace her in this Presidential term. The question is whether to risk waiting until the mid-terms and the hope of Democrats re-taking the House. Of course, they could end up losing the Senate so I’d expect a new Supreme Court Justice appointment sooner rather than later. This offers an opportunity to renew the status quo. Scalia will be 80 in four years time and a Democrat Presidential victory in 2016 could offer an opportunity to re-balance the Court, but it’s unlikely – it seems to me – to happen before then. All of which matters, when deciding issues such as same-sex rights, and the continued debates around abortion. Better preserve the status quo than end up having a clear Republican-controlled Supreme Court (as would have been likely with a Romney victory).
The American electoral college system means that Obama won convincingly, and also won measured by the popular vote. However, the votes in individual States were very close and if anything served to illustrate just how divided socially, politically, and economically America is in 2012. It’s going to take more than fine oratory to fix it.
Nonetheless, as this campaign advanced (and with some gentle prodding from the Vice President), Obama seems to have increasingly found a voice on LGBT issues as he recognised the need to energise his base and re-create the coalition of voters that elected him back in 2008. Hopefully, this will continue in office, combining hard-policy with cultural leadership.
Coupled with the ticking bomb of a demography shift between now and 2016, and no election will ever be the same again. Some Republicans- notably Jeb Bush – understand this and have spoken eloquently of the need to change, but the dominant Tea Party tendency does not. Just as with the British Conservative Party, they have established themselves as ‘the nasty party’ in the minds of many and will need to modernise and re-cast themselves in 2016. If they want to be in with a shot in 2016, they need to take some quantum leaps on social issues -such as same-sex marriage, and also on race. If they fail to do so, they will never hold the Presidency again.
A Representative Breakthrough?
We can rejoice in some truly wonderful results. Tammy Baldwin (who I mentioned in my post yesterday) made history by becoming the first out Senator-elect. Well done Wisconsin! She is replaced in her House seat by openly gay man Mark Pocan. They are among a number of openly gay men and women who were elected at a Federal and State level. This is important not only for having strong LGBT voices in elected politics, not only for having people in office who ‘get it’, but also for providing visible role-models to LGBT youth and for creating visible community leaders who happen to identify as LGBT. They are creating change legally, and also socially.
However, we shouldn’t get carried away. Michele Bachmann, former candidate for the Republican nomination – and someone who seems bat shit crazy to many European eyes – narrowly won in Minnesota.
Ballot Measures: Marriage
Beyond the national race a series of ballot measures took place which are likely to deliver transformative change to millions. Maine, Maryland and Washington have all voted in favour of introducing same-sex marriage in state ballots. Minnesota (the same state that re-elected Bachmann) faced a vote on amending the constitution to effectively ban same-sex marriage and the amendment was rejected. A clean sweep for LGBT campaigners. Add in two states – Washington and Colorado – legalising the recreational use of marijuana, and you could be forgiven for thinking that America had suddenly swerved towards a liberal future.
Ballot Measures: Sex Trafficking
However, take a look at what might be called a Democrat state – California – and you see a different picture. A measure to finally remove the death penalty was rejected whilst a new measure to toughen the law on sex trafficking (and arguably creating more problems than it solves in relation to sex work) was passed.
The official (and impartial) advice set out the implications of passing the measure on trafficking:
This measure makes several changes to state law related to human trafficking. Specifically, it (1) expands the definition of human trafficking, (2) increases the punishment for human trafficking offenses, (3) imposes new fines to fund services for human trafficking victims, (4) changes how evidence can be used against human trafficking victims, and (5) requires additional law enforcement training on handling human trafficking cases. The measure also places additional requirements on sex offender registrants.
Expanded Definition of Human Trafficking. This measure amends the definition of human trafficking under state law. Specifically, the measure defines more crimes related to the creation and distribution of obscene materials depicting minors as a form of human trafficking. For example, duplicating or selling these obscene materials could be considered human trafficking even if the offender had no contact with the minor depicted. In addition, with regard to sex trafficking cases involving minors, prosecutors would not have to show that force or coercion occurred. (This would make state law similar to federal law.)
More Severe Criminal Penalties for Human Trafficking. This measure increases the current criminal penalties for human trafficking under state law. For example, the measure increases the prison sentence for labor trafficking crimes to a maximum of 12 years per offense, and for sex trafficking of adults to up to 20 years per offense. Sex trafficking of minors that involved force or fraud would be punishable by up to a life term in prison. In addition, the measure specifies that offenders convicted of human trafficking with previous convictions for human trafficking receive additional five-year prison terms for each of those prior convictions. Under the measure, offenders convicted of human trafficking that resulted in great bodily injury to the victim could be punished with additional terms of up to ten years. The measure also permits criminal courts to impose fines of up to $1.5 million for human trafficking offenses.
Programs for Human Trafficking Victims. The measure requires that the funds collected from the above fines support services for victims of human trafficking. Specifically, 70 percent of funds would be allocated to public agencies and nonprofit organizations that provide direct services to such victims. The measure requires that the remaining 30 percent be provided to law enforcement and prosecution agencies in the jurisdiction where the charges were filed and used for human trafficking prevention, witness protection, and rescue operations.
Changes Affecting Court Proceedings. The measure also affects the trial of criminal cases involving charges of human trafficking. Specifically, the measure prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking. The measure also makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. In addition, this measure disallows certain defenses in human trafficking cases involving minors. For example, a defendant could not claim as a defense being unaware of the minor’s age.
Law Enforcement Training. This measure requires all peace officers employed by police and sheriff’s departments and the California Highway Patrol (CHP) who perform field or investigative work to undergo at least two hours of training on how to handle human trafficking complaints. This training would have to be completed by July 1, 2014 or within six months of the officer being assigned to the field or investigative work.
Expanded Requirements for Sex Offender Registration. This measure requires registered sex offenders to provide the names of their internet providers and identifiers to local police or sheriff’s departments. Such identifiers include e-mail addresses, user names, screen names, or other personal identifiers for internet communication and activity. If a registrant changes his or her internet service account or changes or adds an internet identifier, the individual must notify law enforcement within 24 hours of such changes.
Although undoubtedly well meaning, the measure has the effect of extending the definition of ‘trafficking’ to extend those acts which people would not ordinarily consider to be part of the same legal problem. Consensual sex work arguably falls within the ambit of the measure and anyone receiving financial benefit from this activity could be prosecuted and forced to register as a sex offender. It’s badly drafted and could have a series of unintended consequences.
In LA County, the much-discussed ‘condom measure’ was passed. With 55.85% in favour, Measure B. Here’s what the ‘official’ advice stated on this measure:
The proposed amendment would require producers of adult films to obtain a public health permit from the Los Angeles County Department of Public Health (the “Department”) in order to engage in the production of adult films for commercial purposes, and to pay a permit fee set by the Department to offset the cost of enforcement. The measure would require the use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of both the public health permit and a notice to performers regarding condom use. Producers are required to provide a written exposure control plan describing how the ordinance will be implemented. A “producer” means any person or entity that produces, finances or directs adult films for commercial purposes.
Violation of the ordinance would be subject to both civil fines and criminal misdemeanor charges. The Department would be authorized to enforce the provisions of the ordinance, including suspending or revoking the public health permit due to violations of the ordinance, or any other law including applicable provisions of the Health and Safety Code, blood borne pathogen standard, California Code of Regulations, or the exposure plan of the producer. Suspension or revocation of the public health permit requires notice and an opportunity for an administrative review, unless the Department found or reasonably suspected immediate danger to the public health and safety, in which case the Department could immediately suspend or revoke the public health permit, initiate a criminal complaint, or issue a fine, pending an administrative hearing.
The measure, if approved by the voters, may only be repealed by a subsequent vote of the electors or by an amendment of the Los Angeles County Charter superseding the ordinance. The Board of Supervisors is authorized to amend the ordinance by a majority vote in order to further the purposes of the measure.
As I’ve previously speculated, where LA goes, other may follow. It is not a California-wide ban, and it will be interesting to see how it operates in practice. Presumably, some stimulation will be provided to the local economy as the County looks to hire condom inspectors who can monitor the new law. Unfortunately, any such economic stimulus is likely to be off-set by the exodus of studios as they look elsewhere to film there porn. Consumers continue to have a clear preference for condomless porn, and so this measure will simply relocate the production of porn, rather than change it.
I’m particularly curious to see if anywhere else seeks to replicate the law.
A conservative settlement?
For Brit observers, you might want to reflect on that powerful speech line deployed by Conservative Prime Minister David Cameron – “So I don’t support gay marriage despite being a Conservative. I support gay marriage because I am a Conservative” – as a reminder that the marriage issue can be re-defined not as an issue of the left, but as a very conservative institution. I’ve explored this previously in a HuffPo piece you can check out here.
As much as the same-sex marriage ballot results are victories for the LGBT community, they should also indicate the need for a debate and recognition of plurality when it comes to the expression of identity. The embrace of domesticity and a very heteronormative concept of marriage holds less appeal to all those queer sluts out there – their identity apparently cast as increasingly embarrassing and a source of discomfort more generally (take the moves to ban nudity in the Castro as but one illustrative example).
Last night and the results that continued to filter through today were truly great for the LGBT community – rightly a source of celebration. However, let us not lose sight of the battles ahead and the debates the LGBT ‘community’ must face up to as legal reforms create new social – and indeed legal – pressures and questions that we must all respond to. We live in an age of increased acceptance of the homosexual identity, but increased silence about homosexual sex. A curious division of the homo and the sexual, and one that some are starting to debate, discuss and consider (see here)