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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: 


J. Kelly Strader & Lindsey Hay*


   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.


   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.

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