Hate Crimes, Sex Laws and Police in Maine

Sexual orientation is a protected characteristic under Maine’s hate crimes laws.

Questions & Answers (Accurate as of February 25, 2014)

Hate Crimes & Violence

Does Maine have a hate crimes law?

Maine has a hate crimes law that permits consideration of the nature of the crime during the sentencing phase.104 If the defendant selected a person or his or her property for criminal activity because of, among other things, sexual orientation, then that fact can be taken into account. The law, however, does not include gender identity or expression among the factors to be taken into consideration upon sentencing.

Where can I call if I think I’ve been a victim of a hate crime?

In addition to the local police, you may contact the Attorney General’s Civil Rights Unit at (207) 626-8800, or online at http://www.maine.gov/ag/civil_rights/index.shtml.

What additional protections against hate crimes and harassment exist in Maine law?

  1. General Criminal Laws: Hate crimes are prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, and so on. These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for criminal accountability, and the selection of a person (or his or her property) because of sexual orientation can then be considered in the sentencing phase.

  2. “Civil Rights Law”: On the civil side, Maine law provides for civil remedies when a person violates another person’s state or federal rights in certain circumstances.105 This provision, known as the “Maine Civil Rights Act” specifically states that a “person has the right to engage in lawful activities” without being subject to the infliction or threat of physical force or violence or the damage, destruction or trespass of property, motivated by reason of sexual orientation.106 Contact local law enforcement or the Attorney General’s office if you have been a victim under this law as the State is the primary enforcer of this statute. More specifically, the law allows a person to bring a private action against someone who uses or threatens physical force or violence, damages, destroys or trespasses on property, or threatens to damage, destroy or trespass on property in a manner that intentionally interferes or attempts to interfere with another person’s exercise or enjoyment of their rights under state or federal law.107 If those elements are met, then a person may bring an action for legal and equitable relief. Aside from the possibility of recovering money damages, equitable relief means that the person suing can obtain an order forbidding the attacker from coming near him or her, whether at home, at work, in school, or even from telephoning him or her. Actions must be brought within 6 years, although moving promptly is always an advantage.108 In addition to whatever relief a restraining order may provide, it is also important that violation of a restraining order is a criminal offense that can be prosecuted. You should report any violations of a restraining order to local police, and keep careful records of any and all violations. The Attorney General’s Office also has the power to bring civil rights actions on behalf of people who are harassed or threatened.109 The contact information is listed above.

  3. Harassment Law: Maine law permits people to petition the District or Superior Court for an order preventing harassment.110 “Harassment” is defined as “any repeated act of intimidation, harassment, physical force or threat of physical force directed against any person, family, or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by” the Constitution or laws of Maine or the United States. Under this law, a person may seek emergency orders, and later seek temporary orders, and ultimately seek final orders of protection. In addition, with final orders, a successful plaintiff may be awarded damages for direct losses caused by the harassment (e.g., lost earnings, property repair or replacement), reasonable moving expenses and court costs and attorney’s fees.111 Violation of a court restraining order is a criminal offense.112

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act113 was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

  • investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
  • grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
  • grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

  • where the offender(s) has committed crimes in more than one state, or
  • that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does Maine have a sodomy law?

No, Maine long ago repealed its sodomy law. Moreover, in Lawrence v. Texas (2003)114 , the U.S. Supreme Court struck down all sodomy laws, making clear that private, adult sexual conduct cannot be criminalized.

Why do some gay people get arrested?

All people are subject to the criminal laws. Sex in public, or with underage persons, or without consent, or with force, are illegal. Sex for pay—as the customer or the provider—i.e., prostitution, is also illegal.

There is also an “indecent conduct” law that targets sexual activity or exposure which

  1. occurs in a public place (including motor vehicles on public ways), or
  2. occurs in a private place with the intent that it be seen from another public or private place, or
  3. occurs in a private place with the intent that it be seen by others and where the actor knows observation will cause affront or alarm.115

The penalties may be increased under the law if a person has two or more convictions for this offense.

The State has a legitimate law enforcement interest in protecting the general public from open displays of sexual activity—whether the sex is between people of the same sex or of different sexes, but socializing and expressions of same-sex affection are not illegal, regardless of where they occur. No one should be hassled or arrested for foot-tapping, handholding, talking, flirting, or other non-sexual touching.

Sexual activity is not illegal simply because it takes place outdoors, in parked cars, or on public lands. However, as a practical matter, regardless of one’s rights, having sex in a public venue or outdoors is a risky business. Based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring in a public setting, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in parklands and rest areas—sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with indecent conduct.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.116 School teachers and other school employees may be charged with sexual abuse of minors if they have sex with a student who is under age 18.117 A person who is at least 19 and has sex with a 14 or 15 year old can be charged with sexual abuse of a minor if the adult is at least 5 years older than the minor.118

Does Maine have a “sex offender registry” or “Megan’s” law?

Yes. Every state now has such a law, although the terms differ from state to state. Many states, including Maine, initially included as registrable offenses crimes for which gay men have been unfairly targeted. However, this is no longer the case in Maine. For example, violation of the Indecent Conduct law is not considered a registrable offense under Maine law.

How can I find out of what charges I have been convicted?

To find out your criminal record, you can contact the State Bureau of Identification at (207) 624-7270 (voice) or (207) 287-3659 (TDD). You can also request information by mail if you send a check for $8 payable to the Treasurer of State along with a written request, your name, date of birth, and any aliases. The address is State Bureau of Identification, 45 Commerce Drive, Suite #1, Statehouse Station #42, Augusta, ME 04333. The website is http://www.informe.org/PCR/.

Police Harassment

Is it legal for the police to tell me to “move along” from public areas?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.119

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgender—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may of course approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone is not grounds for the person to be arrested.

Brief intrusions upon a person are permitted if an officer can say why he or she is concerned and that concern is reasonable. For example, if an officer is concerned about someone’s safety, or suspects the person may have committed a crime, or suspects the person has committed a traffic infraction, then a stop is reasonable.120

An arrest can only occur upon “probable cause” that a crime has been committed.121

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers, and complaints to the Maine State Police may be made to the commanding officer of the alleged harasser. The contact person is Lieutenant Luce, Director of Internal Affairs (207) 624-7290. The State Police have a toll-free number at (800) 452-4664. The complaint should specify the name or badge number of the officer, and state whether the complaint is for actual misconduct, harassment or discrimination.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can provide you with attorney referrals. People can also register serious complaints with the Attorney General’s Office, Investigations Unit at (207) 626-8800.

Footnotes

104 17-A Me. Rev. Stat. sec. 1151 (8)(B).
105 5 Me. Rev. Stat. sec. 4682. 
106 5 Me. Rev. Stat. sec. 4684-A.
107 5 Me. Rev. Stat. sec. 4681.
108 14 Me. Rev. Stat. sec. 752.
109 5 Me. Rev. Stat. sec. 4681. 
110 5 Me. Rev. Stat. sec. 4652.
111 5 Me. Rev. Stat. sec. 4655
112 5 Me. Rev. Stat. sec. 4659.
113 See page 646 of H.R. 2647 at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf.
114 539 U.S. 558 (2003)
115 17-A Me. Rev. Stat. sec. 854.
116 17-A Me. Rev. Stat. sec. 254.
117 17-A Me. Rev. Stat. sec. 254 (1)(C).
118 17-A Me. Rev. Stat. sec. 254 (1)(A).
119 Kent v. Dulles, 357 U.S. 116, 126 (1958); State v. Aucoin, 278 A.2d 395, 397 (Me. 1971)(striking down former version of Portland’s loitering ordinance).
120 State v. Gulick, 759 A.2d 1085 (Me. 2007), *2; State v. Connors, 734 A.2d 195 (Me. 1999)(investigatory stop justified when officer has articulable suspicion of civil violation or criminal activity and such suspicion is objectively reasonable in the totality of circumstances).
121 State v. Boylan, 665 A.2d 1016 (Me. 1995)(probable cause to arrest where officer has reasonably trustworthy information that would warrant an ordinarily prudent and cautious officer to believe the subject did commit or was committing a crime).  See also Terry v. Ohio, 392 U.S. 1, 16 (1968).