Sex Crime Defense for LGBTQ+: Challenges and Considerations

By San Diego Attorney on September 30, 2023

LGBTQ+ individuals face unique challenges in sex crime cases. They may encounter stereotyping, bias, and discrimination within the legal system. Police brutality against the LGBTQ+ community is common, particularly against transgender individuals. Statutes related to sex and HIV may be enforced in a discriminatory manner. If convicted and sentenced to jail or prison, LGBTQ+ individuals may become victims of rape or abuse disproportionately to the general population.

Legal Rights of LGBTQ+ Individuals in Sex Crime Cases

Criminal defendants, including LGBTQ+ individuals, have certain rights and protections under the law. All persons are entitled to equal treatment, regardless of sexual orientation or gender identity. When interrogated or arrested for a sex crime, they have a right to remain silent and a right to an attorney. If harassed by the police, they are entitled to ask if they are free to go and leave if the answer is yes.

Anti-discrimination laws prohibit discrimination on the basis of sex. Any person who is discriminated against by a recipient of federal financial assistance from the Department of Justice (DOJ) on the basis of sexual orientation, gender identity, or intersex traits may file a complaint with the Office of Civil Rights (OCR). The DOJ offers funding to support law enforcement and public safety activities in state, local, and tribal jurisdictions.

Challenges in Reporting and Prosecuting LGBTQ+ Sex Crimes

LGBTQ+ sex crime survivors may encounter certain barriers when reporting these crimes to the police. Police may tend to disbelieve allegations of intimate partner violence when it involves a same-sex relationship. In some cases, the victim rather than the perpetrator is arrested when LGBTQ+ intimate partner violence is reported. LGBTQ+ survivors may fail to report sex crimes for fear of being judged or not believed.

Prosecutors may face challenges in building a case due to their clients being reluctant to disclose their sexual orientation when it may mean discrimination or denial of services. Others may be reluctant to report for fear of being labeled as the perpetrator or fear that it will reflect badly on their community.

What Are the Defense Strategies for LGBTQ+ Individuals?

Sex crime allegations can seriously damage a person’s reputation. A conviction can have severe, life-altering legal consequences. It is essential for LGBTQ+ individuals accused of sex crimes to have culturally competent legal representation to present a strong defense. Common defenses include:

• Consent: The encounter was consensual.
• Consent withdrawal: The accuser initially consented, and the accused ceased sexual activity promptly upon the withdrawal of consent.
• Alibi: The accused was not present at the location of the alleged crime at the time it occurred.
• Misidentification: A witness was mistaken about the identity of the perpetrator.
• False accusation: Various motives, such as jealousy or revenge, could motivate an accuser to fabricate allegations.

Where Can LGBTQ+ Survivors and Defendants Go for Support?

Various support groups and resources are available to LGBTQ+ sex crime victims and defendants, including:

• San Diego Pride LGBTQIA+ Survivor Task Force
• Center for Community Solutions (rape crisis center)
• The Center for Public Integrity (investigating and reporting on inequality)

If you have been charged with an LGBTQ+ sex crime, it is in your best interests to speak with an experienced criminal defense lawyer as soon as possible. Your San Diego sex crime defense lawyer can provide you with the legal support and guidance you need.

Contact a San Diego Sex Crime Defense Attorney Who Knows How to Win

At jD Law Criminal Defense Attorneys, we have the experience, knowledge, and resources to get your charges or sentence reduced or even dropped. Founding attorney James N. Dicks is a former LAPD police officer and a board-certified Criminal Law Specialist with over 30 years of legal experience. We are dedicated to defending the rights of LGBTQ+ individuals facing criminal charges in San Diego.

Your initial consultation is free and confidential. Call us at (760) 630-2000 to start protecting your future today.