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56 Am. Crim. L. Rev. 465 (2019)
Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement

handle is hein.journals/amcrimlr56 and id is 474 raw text is: LEWD STINGS: EXTENDING LAWRENCE V. TEXAS TO DISCRIMINATORY ENFORCEMENT J. Kelly Strader & Lindsey Hay* ABSTRACT Ongoing police undercover lewd conduct sting operations directed at LGBTQ people reveal entrenched law enforcement bias against sexual minor- ities. The lewd stings are largely pretextual, based upon non-existent com- plaints 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 chal- lenges to these operations have proven largely futile, however. Such chal- lenges 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 challeng- ing lewd stings. In Lawrence, the Supreme Court plainly held that majoritar- ian 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 objec- tively harmful. This morality-based exercise of enforcement discretion is unconstitutional under Lawrence, which applies with equal force to both criminalization and enforcement decisions. INTRODUCTION Entrenched, morality-based law enforcement discrimination against sexual minorities persists nationwide. One of the most visible discriminatory practices is police targeting of LGBTQ people when conducting sting opera- tions directed at vice crimes such as lewd conduct, indecent exposure, and * J. Kelly Strader, Professor of Law, Southwestern Law School, Los Angeles; Lindsey Hay, Associate at Spertus, Landes & Umhofer, LLP, Los Angeles. Many thanks to our former colleague, Molly Selvin, for providing invaluable assistance during the research stage of the article, to Catherine Carpenter for her helpful comments on an earlier draft, to Joseph Lorant for his excellent research assistance, and to Dean Susan Westerberg Prager and the Southwestern Law School faculty development program for supporting this project. Oc 2019, J. Kelly Strader & Lindsey Hay.