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08.07.13

Twelve Men, Silenced by an Unconstitutional Law

Gay-rights groups are up in arms over a Louisiana sheriff’s enforcement of an unconstitutional anti-sodomy law. But the men who were arrested just want to forget about it, Caitlin Dickson reports.

“Oh my God, what are we doing here?”

That’s how Sheriff Sid Gautreaux described his reaction to the latest arrest in a meeting with gay-rights advocates last week. It had happened again.

A middle-aged businessman had been approached by an undercover sheriff’s deputy at the park near his house in Baton Rouge. The cop invited the man to his apartment for a drink and asked him if he had condoms. The man said he didn’t. They then drove separately to the undercover cop’s apartment complex, where the man was arrested. It had been implied, the cop determined, that the man would be willing to have sex. No matter that it would have taken place in a private place, with no money involved. After spending two nights in jail, the man was bailed out, not charged with a crime but left with a pile of legal fees. Yet another man arrested in Baton Rouge for talking about doing something legal.

Last week, the Baton Rouge Advocate reported that since 2011, sheriff’s deputies in East Baton Rouge, Louisiana, have used the state’s “crimes against nature” law—which was invalidated by the 2003 Lawrence v. Texas Supreme Court decision legalizing sodomy—to conduct sting operations and arrest at least 12 men simply for agreeing to have sex with an undercover cop. The bombshell report has sparked dissent from gay-rights activists and conservative groups alike, a rare moment of unison in the deeply conservative and religious culture of southern Louisiana. But the law that allowed the arrests to happen is still on the books. And the two groups of people who could do the most to change that—the men who were arrested and state lawmakers—have made the least noise of all.

In the wake of the Advocate report, local LGBT organization Capital City Alliance immediately called on Sheriff Gautreaux to discuss ways to repair the department’s relationship with the gay community. District Attorney Hillar Moore confirmed that the arrests were unfounded. John Delgado, a metro councilman for East Baton Rouge Parish, is demanding that the council pass a stringent anti-discrimination ordinance. Even the very conservative, Christian group Louisiana Family Forum acknowledged that law enforcement practices should be consistent with the Constitution.

The American Civil Liberties Union would love to pursue a lawsuit against the East Baton Rouge Sheriff’s Department. If only there was a plaintiff.

Not one of the 12 men arrested over the past two years has been willing to speak out—even anonymously—about the experience. One man who was arrested a few years ago agreed to tell The Daily Beast his story on the condition of anonymity, but subsequently declined, fearing his identity would somehow be revealed.

“These guys were outed and embarrassed,” explains Marjorie Esman, executive director of the Louisiana ACLU. She’s spoken to many of the 12 men who were arrested and believes there are many more. “Even if it’s a John Doe litigation they can’t do it without their family knowing. It’s not easy to file a lawsuit like this.”

“If we never got around to repealing a law allowing slavery, it wouldn’t make it OK to sell people.”

When first approached for comment on the arrests, sheriff’s office spokeswoman Casey Rayborn Hicks told The Advocate that the deputies had done nothing wrong. “This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana legislature,” Hicks told the paper. It wasn’t until after the story ran last week, causing a nationwide uproar, that Gautreaux’s office retreated, insisting instead that it wasn’t aware the law had been invalidated by the Supreme Court and would do everything it could to rectify this mistake.

Sheriff Gautreaux has denied multiple requests from The Daily Beast to comment beyond his public statement. He has not addressed why only gay men were being targeted by the stings when the crimes against nature law bans “unnatural carnal copulation”—a scary term for oral or anal sex—between a person and an animal or two people of the same or opposite sex. He’s given no real explanation for how he could not know that his deputes were enforcing a law that had been unconstitutional for a decade.

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It’s hard to know whether any of the outrage will lead to real change. Several state lawmakers have condemned the existence of an unconstitutional anti-sodomy law while simultaneously admitting that the chances of getting it off the books are slim. After all, many members of Louisiana’s predominantly conservative legislature aren’t eager to risk the political ramifications of appearing to support gay rights. The state’s constitution explicitly bans same- sex marriage—a measure conservative Governor Bobby Jindal assured constituents would remain intact even after the Supreme Court struck down the federal Defense of Marriage Act this summer—and Louisiana is one of 29 states where your sexuality can get you fired.

Jindal has kept quiet with regard to the arrests. He does, however, have a history of following the lead of religious conservative groups, most recently vetoing a bill that would have imposed stronger regulations on surrogacy births after the Louisiana Family Forum and the state’s Conference of Catholic Bishops opposed it.

“Louisiana is still very much a don’t ask don’t tell kind of place,” said Adrienne Critcher, political director for PACE Louisiana, a gay-rights group based in Shreveport.  “The religious right is very powerful here. Our state legislature is really far behind where the general public is.”

Supreme Court decisions do not typically come with explicit instructions for how they should be applied to individual state laws. That said, the U.S. Supreme Court decided in the Lawrence v. Texas case that laws criminalizing sexual conduct between consenting people of the same gender violate the due process clause of the Constitution, making state laws banning sodomy unconstitutional and invalid.

“Our state is not different than other states,” says Pete Adams, executive director for the Louisiana District Attorney’s Association. “What happens is, when the U.S. Supreme Court, or a state supreme court decision appears to strike down all or a portion of the statute, it doesn’t often strike down the entire statute, and sometimes that isn’t clear.” Adams pointed as an example to the Supreme Court’s 1973 ruling in Miller v. California, which outlawed mandatory life without parole sentences for juveniles, noting that it took most states years to adapt their own statutes for juvenile capital punishment, and many states have yet to do so.

“We’ve got 65 sheriffs, 300-something police departments, sometimes they aren’t as up to date as they should be of the latest developments of the law.”

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Sid Gautreaux became the sheriff of East Baton Rouge in 2007. The parish (similar to what would be called a county in most other states) contains Baton Rouge, the capital and second-largest city in Louisiana, with some 450,000 residents, as well as the small town of Baker, where Gautreaux served for 27 relatively controversy-free years as the chief of police.

In Baker, perhaps his biggest altercation occurred in 1996, when an officer accused Gautreaux of transferring him because he helped unionize the force. Gautreaux denied that the charge, and the complaint was eventually dismissed. At a November 2007 debate, former sheriff Greg Phares, a Republican, accused then-Democrat Gautreaux of being present at work only three quarters of the time over his last two years as Baker’s police chief. Gautreaux countered that his involvement in several professional law-enforcement organizations kept him out of the office a lot. (Phares cited their bitter sheriff’s race in his decision not to comment on Gautreaux’s work as sheriff for this story.)

On the sodomy arrests, the sheriff has been dutifully apologetic. Two days after The Advocate published its report, his office issued a public statement insisting that he was not aware of the unconstitutionality of the law, that enforcing it was a mistake, and that he’s now working with legislators, the district attorney, and advocacy groups to get the law repealed. He’s also pledged to expunge the records of those who were arrested and cover any legal fees that are not already being waived by the court.

But critics say sorry is not enough. By saying the legislature should have repealed the statute, the ACLU’s Esman argues that the sheriff “is making excuses for his failure to not properly train his people. “There may be a Jim Crow law that’s still on the books, that doesn’t make it OK to arrest people for violating it,” she said. “If we never got around to repealing a law allowing slavery, it wouldn’t make it okay to sell people.”

Esman insists a lawsuit is a necessary means of vindication for the victims. “I don’t think there’s any question that this was purely homophobic targeting,” she says. “The larger issue is making sure that law enforcement knows what they can do and what they can’t do. That’s why a lawsuit is so important. It’s not reasonable for someone in his position not to have known.”

Adams was much more understanding of the sheriff’s offices’ failure to assess the validity of the crimes against nature statute. “I don’t know what you can expect him to do,” he said. “He’s got a pretty good reputation of being a fair guy.” While he doesn’t believe the whole statute will ever be taken off the books—it also includes a provision banning bestiality—he argues that it is up to law enforcement, prosecutors, legislators and other interested groups to come up with a new bill that amends the law and brings it into compliance.

Baton Rouge Criminal defense lawyer Tommy Damico has represented a few of the men who were arrested in these sting operations, including the most recent. Pointing out that the police officer was undeniably the aggressor in the situation, Damico says his client, the most recent arrestee, would have “an awful good lawsuit”—if he were willing to pursue one. But Damico’s client, like the other 11 men who were arrested, is not interested in pursuing a lawsuit. They aren’t looking to anonymously lend their cases to the SPLC. They really just want this all to go away.