The legal definition of malice aforethought includes "an intent willfully to act in callous and wanton disregard of the consequences to human life."
Throughout much of U.S. legal history, this would be an apt description of the legal system's approach to people beyond the traditional definitions of sexuality and gender identity.
The ways the system has harmed the LGBTQ community are many, but here are a few key historical problems:
Sodomy and related sex laws. They primarily targeted gay men. Illinois was the first state to get rid of its sodomy law, in 1961, and the U.S. Supreme Court finally banned such laws in Lawrence v. Texas in 2003.
Targeting "vice." These commissions and police squads go after any illegal activity, including prostitution. But many over-eager departments have also targeted gay men having consensual sex (without prostitution), and police have had handsome decoys pose as gay men in order to entrap victims in public spaces. Police even placed ads in gay papers' personals and massage sections seeking to entrap men.
Cross-dressing laws. Many states and cities had laws that barred people from wearing items traditionally linked to the opposite sex. These laws allowed for police harassment and arrests. It took Chicago until the 1970s (first through legal rulings and later through City Council action) to eliminate the cross-dressing law.
Dancing queens. While it was technically not illegal, police often harassed and arrested people for dancing with a partner of the same sex. Until the early 1970s, most Chicago-area gay bars banned same-partner dancing to avoid additional police scrutiny.
Official harassment. LGBT bars, especially prior to 1980, were targets of police shakedowns, and were often also harassed by the Mafia. The police harassment created a large level of distrust in seeking help from authorities when the businesses experienced other problems, and owners often turned to the Mob for pseudo-protection. Police cooperated with media to provide names of those arrestedresulting in lost jobs and even suicides.
Fear of authorities. Because of this fear, including potential arrest, many gays did not report crimes, including shakedowns by men impersonating police officers, or blackmail from other criminals. This in turn allowed criminals to flourish. Even today, community organizations often document higher anti-LGBT crime numbers than police do, because of this fear of reporting to authorities.
Institutionalized bias. Past exclusion of known sexual-minority persons from law licenses, police employment and other jobs meant openly LGBT people did not have a seat at the table in creating policies and enforcing laws.
Gay panic. This is a common "defense" used by those charged with violent gay attacks and murders, and it has often been successful.
Ignoring violence. Neighborhoods perceived as "gay" have often been targeted by gay-bashers and serial killers. In the past, because police ignored the crimes or often treated them with little seriousness, LGBTs organized their own street patrols and response, including a whistle-blowing campaign in 1970s Chicago, and a 1980s Pink Angels group. Ignoring violence has gone beyond ignoring neighborhood gay-bashing to ignoring or belittling individual complaints of crime or to inadequate investigations of homicides. Some serial killers likely were able to continue their trade longer because of a lack of police attention to their attacks, and their victims. (John Wayne Gacy, Larry Eyler and Jeffrey Dahmer are three such examples.)
Criminalization of HIV and AIDS. Gay men have been targeted for their sexuality based on the consequences of these types of laws, many of them still on the books. And new HIV/AIDS transmission laws are also being passed with regressive language.
Intimate-partner violence. Police and authorities have had a difficult time handling domestic-violence cases involving people of the same gender, or gender non-conforming people. The police ask "who is the man" or "who is the woman" because they do not have the training to understand how LGBT relationships work.
Mishandling transgender cases. The police across the U.S. have had difficulty with transgender survivors of attacks, and with solving the large number of transgender murder cases. Victims are often treated with shocking levels of ignorance and transphobia.
Prison problems. Discriminatory denial of prison rights or privileges, derogation, and the debatable issue of segregation, which has sometimes seemed to benefit sexual-minority prisoners but can lead to more discrimination or harassment by guards.
Criminalization of sex work. Transgender people, who face employment discrimination and lack of access to extremely expensive (often life-saving) gender-related medical care, are disproportionately engaged in sex work. But even those who are not are frequently arrested as sex workers by police simply for "walking while trans."
These are just a few of the problems related to LGBTs and the criminal justice system. There are many more problems related to the civil courts. In the civil courts, LGBTs have lost custody of children, lost their homes after a partner dies, been refused adoptions and encountered many other biased decisions based on their sexuality or gender identity.
Many of these problems have decreased in recent decades, solved in part by pressure from activists, help from allies, and the coming out of LGBT police officers, lawyers, judges and elected officials.
But this recent history of harassment and abuse by law enforcement and the courts still has a residual impact, causing mistrust of the system, and in some cases appearing on people's criminal records still today. For example, an adult man arrested for supposedly public consensual sex with another adult man may have to register as a sex offender.
In this special Windy City Times series, we will look in depth at the criminal legal system and the LGBTQ community in Cook County. Our reporters spent several months researching the archives, looking into public records, interviewing authorities, visiting county facilities and talking to people who have an up-close view of the criminal justice system.
In many ways, the problems LGBTs face with the prison industrial complex are a reflection of the larger societal problem with incarceration and of a society that would spend $50,000 incarcerating someone for smoking marijuana or for stealing $100, rather than take a realistic approach to drugs and survival crimes. But perhaps by investigating further this one area of the system, we can see alternative solutions for a system desperately in need of being fixed.
Images this section from the Chicago History Museum, M. Kuda Archives and Windy City Times archives. Larger, readable images here: www.windycitymediagroup.com/gay/lesbian/news/photospreadthumbs.php .
1. 1911 Chicago Vice Commission report.
2. Chicagoan Henry Gerber, who was arrested in the 1920s after starting a homosexual rights group.
3. Clarence Darrow defends the high-profile murderers Leopold and Loeb, a case sensationalized based on the relationship between the two young men.
4, 5. At right: Two men or two women dancing together as well as cross-dressing were banned in gay bars until the 1970s, but some people risked arrest to be themselves.
6. Tony Midnite was a popular female impersonator, including in Chicago. This image is from 1953. Cross-dressing was banned in the city until the 1970s.
7. Chicago Tribune April 26, 1964 report on a raid of the Fun Lounge, a suburban Chicago gay club.
8, 9. The Gay Crusader December 1973 (left) and August 1973, reports on police reforms and a benefit for people injured in a devastating arson fire in New Orleans.
10. The Gay Crusader December 1973 (left) and August 1973, reports on police reforms and a benefit for people injured in a devastating arson fire in New Orleans.
11. A report in a 1975 edition of The Gay Crusader noted that no arrests had been made in three of six gay-related murders.
12. GayLife Aug. 29, 1975 report on muggings of gay men in Chicago.
13. A rare case of a murder of a gay person solved, through a confession reported in The Gay Crusader September 1975.
14. In 1975, The Chicago Gay Crusader alerted readers to attacks on gay men in public parks, as well as police
arrests of gays.
15. Activists protested the police response to the murder of Donna Smith by her ex-husband. In GayLife Dec. 24, 1974.
16, 17. GayLife Dec. 10, 1976 (left) and Nov. 26, 1976 (below) report on yet more violence against gays in Chicago.
18. GayLife Oct. 1, 1976 reported on a study showing most gay men are killed by heterosexuals, not other gays, and a report on the murder of Bijou's owner.
19. GayLife Feb. 4, 1976, stories about a double murder of two women, and a blackmail scheme.
20. GayLife April 4, 1977 reported on the murder of gay bartender Frank Rodde III, 29; his murder was never solved. His name was used for a Tavern Guild gay fund and a gay community center.
21. GayLife Oct. 14, 1977 looks at the blackmail threat to gays.
22. GayLife Jan. 4, 1980 reported on the police raid of the South Loop Rialto Tap. One hundred men were arrested at the bar, which catered mostly to African American gay men.
23. Alyn Toler (left) founded the Pink Angels in 1991 as a response to anti-gay violence. Curtis Sliwa of the Guardian Angles is pictured middle. Photo by Tracy Baim
24. GayLife from Aug. 23, 1984 including coverage of anti-gay violence nationally.
25. GayLife from Aug. 30, 1984, including coverage of Larry Eyler's murder of multiple young men and boys.
26. Gaylife May 10, 1984 coverage of a triple murder on Chicago's West Side.
27. June 14, 1984, coverage of a suspect in bombs planted at 24 gay bars.
28. More coverage of Larry Eyler, and one of his victims, Danny Bridges, who was killed after Eyler had been let out of jail because evidencewas ruled inadmissable against Eyler. GayLife, Sept. 6, 1984.
29. Baton Show Lounge owner Jim Flint was among gay bar owners forced to testify in a case against mob shakedowns on the North Side. From GayLife Oct. 4, 1984.
30. A Queer Nation anti-violence march in Chicago, August 1991. Photo by Genyphyr Novak
31. Windy City Times reported Dec. 18, 1986 on a $15 million lawsuit filed against officers of the Northwestern Metropolitan Enforcement Group from a Sept. 12, 1985 raid on the gay bar Carol's Speakeasy.
32. Ron Cayot was shot in 1992 while coming out of a gay bar on Halsted. He lost the ability to speak normally from the assault. Photo by Tracy Baim