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NEWS & LETTERS, APRIL 2003
Criminalizing sexuality
The question of how the sexuality of criminal defendants
is presented to juries and handled by judges was explored at a conference in
late February at Northeastern Illinois University in Chicago. Joey Mogul, a
lawyer with the People's Law Office, cited the discretion given to prosecutors
in seeking the death penalty as a problem. During the conviction phase of a trial, gender
stereotypes can be used to cast a convicted person as belonging to a gender
variance, Mogul said. This may present the convict as being inferior and having
a tendency to violence. It is a quick process to dehumanize the defendant. The
dykier and butchier, the better, said Mogul. Thus, a jury may view the convicted
person as more worthy of death, or whatever punishment the prosecutor seeks. Even if defendants are "straight," the
prosecutor may, through insinuation and innuendo, cast them as queer in order to
influence a biased jury. Forty percent of women in prison have had accusations
of being lesbian used against them. Mogul advocates a law that forbids the
mention of gender orientation in trials. She cited a 1999 case where the prosecution bombarded
the jury with evidence of the defendant’s lesbianism. The states attorney
argued that because she was a "hard core" lesbian, she was more likely
to kill. The allegations were completely unsubstantiated and irrelevant. Mogul
said she was amazed at how the state kept repeating this non-evidence and wryly
observed that she has never heard of a prosecutor using heterosexuality as a
motive for murder. The innocent and heterosexual Kerry Max Cook (portrayed
in the drama "Exonerated") was condemned partly on the basis of his
alleged homosexuality. The news of his being gay preceded him to prison where he
was unmercifully treated by the inmates. Lesbian, gay, bisexual or transgendered people have no
peers on the jury. Thus, Mogul argued, the jury of peers is simply a mockery if
the sexuality of the defendant is to be a factor is the prosecution's case. --January |
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