An "Infamous" Hurdle to Equality

Written by L. Nehme

In the past few decades, the LGBT community has made great strides in its attempts to achieve equality. The military’s “Don’t Ask, Don’t Tell” policy has been repealed, gay marriage has been legalized in several states, and more and more people are rallying against discrimination against LGBT individuals. One area, however, has been ignored during all of these changes, and that area is the statutory rape and seduction laws that are still on the books in several states.

One of these states is Nevada. One of these states is Nevada. A homosexual person can be charged with statutory seduction for having sex with someone who is under the age of 18, while a heterosexual person can only be charged for having sex with someone under the age of 16. In the Nevada Revised Statutes, same-sex statutory seduction is horrendously called the “infamous crime against nature” and is defined as "anal intercourse, cunnilingus, or fellatio between natural persons of the same sex." It goes on to say that “[a]ny sexual penetration, however slight, is sufficient to complete the infamous crime against nature.”

The punishment for statutory seduction between two people of the same sex is harsher and thus disproportionate to the punishment for the same crime between members of the opposite sex. The statute discussing opposite-sex statutory sexual seduction makes it clear that the perpetrator must be over 18 years old and the victim must be under 16. Punishments vary depending on the age of the perpetrator, but the maximum sentence is years in prison and a $10,000 fine. Unlike opposite-sex statutory seduction, the “infamous crime against nature” has is no minimum age requirement for the perpetrator. It merely states that “a person” who “incites, entices, or solicits a minor to engage in the acts” will be guilty. A minor is anyone under the age of 18. Regardless of their age, individuals convicted of the “infamous crime against nature,” can be sentenced to a maximum punishment of life in prison.

All of this means that two gay 17 year-olds can be convicted for having sex with each other, and they could both serve life terms in prison. This is not the case among straight teenagers. There is no reason for this discrepancy - sex is sex, regardless of whether it is between a man and a woman or between two people of the same sex.

This statute is blatantly unfair. It is also unconstitutional, as it discriminates among different citizens, violating the Equal Protection Clause.

The differing ages for statutory seduction go to show that society is still uncomfortable with gay sex, and therefore, want to make sure their children don’t “experiment” while they are teenagers. This homophobic law is hindering the fight for equality.

Furthermore, the anachronistic language of the statute needs to change. Sex between two persons of the same sex is not a “crime against nature.” The Supreme Court ruled in Lawrence v. Texas that “crimes against nature” are not crimes, and that a state cannot outlaw sodomy. Nevada removed its “crimes against nature” statutes that outlawed sodomy in 1993, and the state should have removed this additional statute as well.

Continuing to define homosexual sex as a “crime against nature” aids in the oppression of the LGBT community and must stop. It is especially bizarre in a state that has legalized same-sex domestic partnerships, and has numerous laws protecting the LGBT community.

Whoops! DNA "Switch" Puts Innocent Man Behind Bars

The Nevada ACLU was shocked to hear that the Las Vegas Metro Police Department (LVMPD) has released a video in which they admit to a DNA sample error which led to the wrongful conviction and 4 year incarceration of a Las Vegas man.

The video, which includes interviews with LVMPD Sheriff Doug Gillespie and the Executive Director of Metro’s forensics lab, Linda Krueger, explains how a “sample switch” led to the wrongful conviction of Dwayne Jackson of robbery in 2001. In short, two DNA samples were collected from two suspects, and these two samples were switched, sending the innocent man to prison and allowing the guilty man to remain free.

This case is a perfect example of why post-conviction DNA analysis is so important. The state of Nevada made a good step in this direction with Assembly Bill 179 during the 2009 legislative session, but Nevada has a long way to go to ensure that timely relief is made reasonably available to any individual convicted based on DNA evidence.

This very serious misstep by LVMPD is also indicative of why the ACLU of Nevada worked so hard during the 2011 session against Assembly Bill 552, a bill which would have mandated DNA collection from felony arrestees before they were even charged with a crime. In addition to its violation of Fourth Amendment standards of privacy, one of our primary practical arguments against AB552 was that the increased amount of DNA collection would come with the increased possibility of human error. Through its own admission, LVMPD has shown that our concerns were founded.

Although AB552 was not passed by the 2011 Nevada legislature, this wrongful conviction case is the type of distorted "exoneration" story that proponent's of DNA collection use to argue the "worthiness" of DNA collection and of the CODIS system as a whole. In fact, proponents of AB552 gave the example of a man who was being held and being prosecuted for a crime until someone else’s DNA was linked to the evidence. But this is fuzzy logic.

"The notion that you need an arrestee database to exonerate someone is complete bunk,” Michael Risher, our colleague from the ACLU of Northern California (and the lead attorney on the ACLU’s case against a similar law in California) recently told the Nevada News Channel. “Exoneration should occur when the crime scene sample is compared to a sample taken from someone claiming he’s innocent, and they don’t match,” Risher said.

We couldn’t have said it better. ACLU members in all states should remain vigilant and actively engaged against these types of DNA collection bills, especially in the wake of a wrongful conviction story such as this.

Why We Need to End America's Longest Failing War

June 17th marked the anniversary of America’s longest running war. Not the war in Afghanistan or even Vietnam, but a war that has cost us more money than Afghanistan and Vietnam combined.

Forty years ago, President Richard Nixon declared a War on Drugs, making drug abuse “public enemy number one.” Yet $1 trillion later we have absolutely no victories to proclaim, no one to congratulate and more problems than we ever could have imagined as a result of our all-out War on Drugs.

The forty-year blanket prohibition on drugs has given the United States the dubious distinction of being the world’s largest incarcerator. We have only five percent of the world’s population but twenty five percent of the world’s prison population. Over the course of the Drug War we have incarcerated tens of millions of people, ruining lives and families, for offenses that were not even crimes for much of American history.

Across the border in Mexico, drug cartels fight to control the flow of drugs to their number one customer, the United States. Here at home, local and federal law enforcement agencies spend billions of dollars of taxpayer money each year trying to stop the flow of drugs from Latin America, yet drugs are cheaper and easier to access than they have ever been. In these difficult economic times, we must change course not only to save money but to save lives through treatment and rehabilitation rather than incarceration.

In 2006, I worked for the Committee to Regulate and Control Marijuana (CRCM) which backed Ballot Question 7. If passed, the measure would have taxed and regulated the possession and sale of an ounce or less of Marijuana to individuals over 21 years old using a similar structure to the distribution of alcohol. While I worked for the campaign, I spoke about legalization with hundreds of Nevadans all over the state. A majority of voters had a complete misunderstanding of the facts and science behind drug prohibition, believing that marijuana is a “gateway drug,” a theory that has long been proven false. This is the result of nearly a century of government misinformation to convince Americans that our nation’s addiction to drugs is a criminal matter instead of a public health problem.

Texas has a reputation as being one of the toughest states on crime in the country. But in 2007 the Texas legislature allocated $241 million to expand drug treatment programs instead of spending $2 billion to build more prisons. The Texas Department of Criminal Justice recently released an evaluation of released offenders who took part in rehabilitation programs after being released and found that recidivism rates among those who participated was significantly lower than those who did not. Programs like these need to be implemented across the country to save money and produce real results instead of relying on policies that have been abject failures.

Legalization of marijuana is gaining traction nationwide. In 2005, a Gallup poll found that 36% of Americans favored legalizing marijuana use, while 60% were opposed. Today, support for legalization is up to 46% while opposition had dropped to 50%. A majority of citizens in a growing number of states now say that legally regulating marijuana makes far more sense than prohibition and incarceration. Additionally, there is support for legalization across the political spectrum. Recently, unlikely congressional allies, Ron Paul (R-TX) and Barney Frank (D-MA), introduced legislation that would let states to decide whether or not they want to legalize marijuana. This is the first time such a bill has been introduced and has sparked a great deal of debate about the benefits of ending prohibition on the federal level.

Those who scoff at the idea of ending the Drug War need to take a serious look at both the major policy failures associated with our attempts at social control and the immense amount of time and money we have thrown at a problem that has only grown worse. We can no longer incarcerate our way to a victory in the War on Drugs.

Nixon economist Milton Friedman said it best, “So long as large sums of money are involved – and they are bound to be if drugs are illegal – it is literally hopeless to expect to end the traffic or even to reduce seriously its scope. In drugs, as in other areas, persuasion and example are likely to be far more effective than the use of force to shape others in our image.”

Honoring Courage Seven Years After Abu Ghraib

To mark the seventh anniversary of the publication of photographs that exposed torture and abuse at Abu Ghraib prison, the New York Times published an ACLU/PEN American Center op-ed today honoring those who stood up against the torture policies of the Bush administration. In the introduction, Jameel Jaffer and Larry Siems write about Sergeant Joe Darby, as well as the many other Americans, known and unknown, who stood up against the Bush administration’s torture policies:

In January 2004, Spec. Joseph M. Darby, a 24-year-old Army reservist in Iraq, discovered a set of photographs showing other members of his company torturing prisoners at the Abu Ghraib prison. The discovery anguished him, and he struggled over how to respond. “I had the choice between what I knew was morally right, and my loyalty to other soldiers,” he recalled later. “I couldn’t have it both ways.” So he copied the photographs onto a CD, sealed it in an envelope, and delivered the envelope and an anonymous letter to the Army’s Criminal Investigation Command. Three months later — seven years ago today — the photographs were published. Specialist Darby soon found himself the target of death threats, but he had no regrets. Testifying at a pretrial hearing for a fellow soldier, he said that the abuse “violated everything I personally believed in and all I’d been taught about the rules of war.” He was not alone. Throughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral. The Bush administration’s most senior officials expressly approved the torture of prisoners, but there was dissent in every agency, and at every level. There are many things the Obama administration could do to repair some of the damage done by the last administration, but among the simplest and most urgent is this: It could recognize and honor the public servants who rejected torture.

The Bush administration repeatedly honored those who approved torture, but the Obama administration should honor those — like Joe Darby — who rejected it. You can send your own personal message of thanks to the American heroes who stood up against torture, and have copies of those messages sent to President Obama. Send your message of thanks >>

For every Joe Darby, we know that there are countless other American heroes who opposed policies of torture and abuse whose names we do not know. To honor the best of America, we are asking you to share your stories of how you or someone you know stood up to oppose torture or abuse. Complete our form to let us know how you or someone you know said no to torture >>

(Originally posted on the Blog of Rights.)

Arizona's "show me your papers" law dealt a stunning blow

The Torch is back with Peter Ashman, an ACLU of Nevada board member and an immigration attorney in Las Vegas, giving us an interesting look at the recent blow dealt to Arizona's anti-illegal immigration bill.

 Last July, just before Arizona's anti-illegal immigration bill, S.B. 1070, was to go in effect, the United States stepped in and successfully obtained an injunction from a federal judge in Phoenix. Governor Brewer, the controversial proponent of the measure filed an appeal of the decision. On April 11th, 2011, the 9th Circuit Court of Appeals upheld the Arizona District Court holding that S.B. 1070 is preempted by federal law. As most rational thinking people predicted, Arizona's efforts to create its own separate state policy on immigration is not consistent with the federal government's role in regulating the national borders and conducting its own foreign policy with Mexico.

As the court correctly recognized, Arizona’s misguided attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law, has negatively impacted U.S. foreign relations, and reflects the dangers of allowing states to enact a patchwork of conflicting regulations. The Ninth Circuit also rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws and held that Congress intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General.”

SB 1070 would have required all Arizona law enforcement personnel to verify the status of anyone they come in contact with, or even suspect of being an undocumented immigrant. It would have required all people to carry proof of their immigration statuses—including U.S. citizens, and made it illegal to seek employment in public places. Proponents argued that the law was necessary to deal with the federal government's abject failure to create and enforce reasonable laws on immigration and deal with Arizona's undocumented population and their purported burden on Arizona's schools, hospitals, roads, and generous social benefits.

Utah has recently passed similar legislation, but has taken an additional (and somewhat bizarre) step of providing papers that would purport to let undocumented aliens work legally in Utah, as long as the federal government agrees to allow Utah the power regulate the undocumented within its borders. Georgia's legislature passed a similar law the day after the 9th Circuit decision in U.S. v. Arizona. Florida and many other states are considering similar anti-immigration laws. But Texas, Colorado, Kentucky, Wyoming, New Hampshire, and Nebraska have rejected Arizona-style bills this year, according to the National Immigration Forum.

Most observers believe this matter will eventually wind up before the U.S. Supreme Court, unless Congress acts first to deal with this long-overdue problem. However, with the 2012 elections already beginning to heat up, and a Congress seemingly gridlocked on budgetary issues, this observer sees no solution on the horizon and expects that while the 9th Circuit decision is good news to those that object to racial profiling, harassment, and vilification of millions of hard working men, women, and children, we are nowhere near the end of the debate over illegal immigration.

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