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Lewd Stings: Extending Lawrence v. Texas to Discriminatory Enforcement
American Criminal Law Review  (IF3.455),  Pub Date : 2019-03-01, DOI:
J. Kelly Strader, Lindsey Hay

Ongoing police undercover lewd conduct sting operations directed at LGBTQ people reveal entrenched law enforcement bias against sexual minorities. 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 challenges to these operations have proven largely futile, however. Such challenges 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 challenging lewd stings. In Lawrence, the Supreme Court plainly held that majoritarian 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 objectively harmful. This morality-based exercise of enforcement discretion is unconstitutional under Lawrence, which applies with equal force to both criminalization and enforcement decisions.