Police Harassment

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Criminal Justice | Police Harassment | Massachusetts

I am often told by police to “move along” from public areas. Is that legal?

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 and are also often places of public accommodation to which non-discrimination rules apply. Even if a police officer wants to deter crime, or suspects 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.

What are the general rules about interaction with police?

The presence of individuals who appear to be LGBTQ+– 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.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly nor implicitly assert that the person must respond to their inquiries. Even if a person has been convicted of a past offense, fails to respond, or responds in a way that does not satisfy the officer, that person cannot be arrested.

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, they may briefly detain an individual, or stop the person for purposes of investigation. An arrest can only occur upon “probable cause” that a crime has been committed.

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. Call GLAD if you need to find out how to make a complaint to the local police.

Complaints to the Massachusetts State Police may be made via a Citizens Response Report, or form SP-340, which can be completed online and sent electronically (see Submit a Citizen Response Report | Mass.gov for more information) or mailed to The Massachusetts State Police, Division of Standards and Training/Citizen Response Reports, 470 Worcester Road Framingham, MA 01702. An officer assigned to the Division of Standards and Training will contact you upon receipt of your report.

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, you may decide to pursue a lawsuit, either because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also register serious complaints with the Attorney General’s Office, Civil Rights Division.

Resources

ACLU Know Your Rights: Stopped by Police: Know Your Rights | Stopped by Police | American Civil Liberties Union. 

 

Criminal Justice | Criminal Sex | Massachusetts

Does Massachusetts have a sodomy law?

Although Massachusetts has had two felony sodomy laws on the books since before its statehood, the Supreme Judicial Court has said (most recently in 2002) that neither law applies to private, consensual, adult conduct.

The first of the two laws is a “traditional” sodomy law, in that it prohibits anal sex and bestiality. It can be applied to anal sex between gay or non-gay people but has often been associated in the public mind with gay men. The second of the two laws covers “unnatural and lascivious acts.” The courts have ruled that this language encompasses “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body.”

Thanks to GLAD’s 2002 case, GLAD et al. v. Reilly et al., adults engaging in private, consensual activity cannot be prosecuted under either of these laws. In a separate, similar ruling in 2003, the U.S. Supreme Court ruled that it is unconstitutional to apply sodomy laws to non-commercial sex between consenting adults in private.

How do I know whether the place where I am engaged in sexual intimacy is “private”?

That is the million-dollar question: what is “private?” For the most part, what happens in the privacy of your own home should be of no concern to the police. Most people arrested for sexual activity are arrested for activity occurring outdoors. However, the courts have ruled several times that sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands. It all depends on the circumstances.

In order for the conduct to be “public,” it must occur in a place where it is reasonably foreseeable that unsuspecting bystanders will happen upon it. When the participants act in deliberate disregard of that risk, their conduct is considered “public” regardless of whether they are discovered by the police or another person. In other words, the laws are “not designed to punish persons who desire privacy and take reasonable measures to secure it.” So long as the sexual activity takes place in a reasonable secluded area, it should be beyond the scope of the law.

Why do people get arrested for sex outdoors if it can be considered “private”?

The Commonwealth has a legitimate law enforcement interest in protecting the general public from open displays of sex, no matter who the participants. That being said, these laws only encompass sexual activity: no one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, or other non-sexual touching, regardless of where it occurs.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business. For one, based on numerous reports to us, we believe that some police will overlook outdoor sexual activity between straight couples, but arrest LGBTQ+ people engaged in the same behavior. Another concern is that some police “hunt” for LGBTQ+ people having sex outdoors in park lands and rest areas to arrest them, sometimes in uniform and sometimes as undercover decoys. A person caught engaging in public sex can be charged with either of the sodomy laws discussed above, or any other of a variety of sex offenses, some of which may require the person to register as a “sex offender.”

GLAD has challenged these practices by many police departments and has sometimes helped to develop more constructive policing practices, such as with the MBTA. Due to a court case filed by GLAD, the Massachusetts State Police have issued training bulletins to all Troopers informing them of the limits of the sex laws in Massachusetts.

Does Massachusetts have any other criminal sex laws that can be applied to LGBTQ+ people?

Unfortunately, yes. There are numerous laws addressing public sexual activity, any number of which can be charged against an LGBTQ+ person arrested for having sex in “public.” These include “open and gross lewdness and lascivious behavior,” a felony involving public exposure of the genitals (the Massachusetts Supreme Judicial Court has established the elements the prosecution must prove beyond a reasonable doubt in order to obtain a conviction under this statute), as well as “lewd and lascivious behavior,” a misdemeanor. When an undercover police officer has been touched by someone, that individual can be charged with “indecent assault and battery on a person over age 14, another felony. Often these laws are charged together. Sometimes police will also charge trespass or disorderly conduct, which are both misdemeanors. Occasionally, people will be charged under the sodomy laws described above.

Does Massachusetts have a sex offender registry law?

Yes. Every state now has such a law, although the terms differ from state to state. In Massachusetts, the law has been tied up in legal challenges and has been redrafted several times. GLAD successfully challenged one version of the law because of our concerns.

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children. However, a conviction for indecent assault and battery on a person over 14 is still a “sex offense” in some circumstances, as is a “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior,” For a full list of sex offenses, see Mass. Gen. Laws, chap. 6, sec. 178C.

What if I was not actually convicted? Or what if my conviction is very old?

The sex offender registry only applies to people who were convicted (or “adjudicated” as a youthful offender) after August 1, 1981, as well as those who were still incarcerated, on parole or probation, or in civil commitment as of that date. If you received a continuance without a finding, that is NOT a conviction and the law does not apply to you. Similarly, if your conviction is from before August 1, 1981, and you were no longer in jail or on probation by that date, the law does not apply to you.

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

You can contact your local police or call the Criminal Offender Record Information (CORI) Support Services Unit at (617) 660-4600 to request a form to get your criminal records. Alternatively, you can request your records online at Sex Offender Registry Board | Mass.gov. 

What obligations are imposed on “sex offenders”?

Most sex offenders will have to register annually with the Sex Offender Registry Board and provide personal data, work information, and other identification. Depending on the circumstances, some or all of this information may be made available to the public.

Where can I get help if I have been convicted of a crime that qualifies me as a “sex offender”?

Because of the strict time deadlines involved in contesting the need to register at all and the classification of one’s dangerousness, it is important you hire an attorney right away. Contact GLAD Answers for a referral.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity in Massachusetts is 16. However, there is some confusion about the age of consent for anal sex and oral sex, with case law questioning whether the age of consent for such acts is 18.

Resources

Massachusetts Law About Sex Offenders: Massachusetts law about sex offenders | Mass.gov. 

Requesting Transfers to Gender Affirming Facilities in Massachusetts: Frequently Asked Questions

How do I get assigned to the right facility? 

Whether you are entering a facility for the first time or have already been in a facility for some period of time, you can request a transfer to a gender-affirming facility. The process is a little different if you request it from the start.

 At the time you first enter the facility, an officer will complete an “Internal Housing Risk Factor Assessment”, which you can find at the end of this document. That form has places to fill out issues about potential risks to your safety at a facility. That is a good time to tell the intake officer that you would like to be placed in a gender-affirming facility. Once you tell them, then they have to follow instructions from this policy, and also described below.

In order to get the right assignment, you either need to self-identify as having “Gender Dysphoria”, or request a referral for “Gender Dysphoria”. After you make your request, then you should meet with a person called the Primary Care Clinician, or PCC, who works at your facility. That PCC should complete an evaluation to determine if you have “Gender Dysphoria” as well as make decisions about how to proceed with your case.

The evaluation should consider things like safe housing, work opportunities, education, program assignments, and your individual safety. These are done on a case-by-case basis. They also consider your security level, your prior history, medical records, and vulnerability. You should also be asked about your own views on your safety and what you think would be best. In some cases, the evaluation will also include if surgery should be a part of the potential treatment plan.

What is “Gender Dysphoria”? 

Massachusetts uses a definition for “Gender Dysphoria” from a book, written by doctors at the American Psychiatric Association, called the Diagnostic and Statistics Manual of Mental Disorders [Fifth Edition], or the “DSM-5”. The definition is:

A difference between a person’s experienced and expressed gender and their assigned gender that has taken place for at least six months. It must include two of the following: 

1. A marked incongruence between one’s experiences/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics);
2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics);
3. A strong desire for the primary and/or secondary sex characteristics of the other gender;
4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender);
5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender);
6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender). 

When a PCC is deciding if a person has “Gender Dysphoria”, they try to determine if a person is experiencing distress or difficulties in socializing, working, or other important areas of life. They will do a face-to-face evaluation and review things like mental health history, medical history, and any medical documents you may have. If you have already been given a diagnosis of “Gender Dysphoria” in the past, then you don’t need to get another referral. 

If the PCC does not agree that you have “Gender Dysphoria” and should get the transfer, it doesn’t mean your case is over. Your case should be referred to two people: the Psychiatric Medical Director, and the Director of Clinical Programs. Then, you should get another face-to-face evaluation within thirty days of the referral. 

If I get a diagnosis from the PCC, what should happen? 

If the PCC decides that you qualify for services under “Gender Dysphoria”, then they should ask you if you will allow a “Release of Information.” They are asking for the Release of Information so that they can see what kinds of medical care you may have been getting in the past and try to continue it. 

The PCC works together with other people, including the Mental Health Director and other providers at the facility. You may meet with someone from your facility known as the on-site psychiatric provider. That person might be different from your Psychiatric Medical Director, or any of the other people you have met with so far. The PCC should then complete a form for you called the Gender Dysphoria Mental Health Referral Form in order to make sure that the facility is aware of your request to transfer. You can find that form at the end of this document.

The Psychiatric Medical Director or another officer should confirm the PCC’s Referral Form. They will consider a number of documents in this decision, including your Referral Form, a review of your medical records, and another consultation with the Psychiatric Medical Director or other officer. If there are any concerns about your diagnosis, then a person with the role Gender Dysphoria Consultant will review the case within 30 days. 

Once my diagnosis is confirmed, what kind of care should I receive? 

After you receive a confirmed diagnosis, you should be given an individualized plan that includes the diagnosis and any other medical concerns you may have. The PCC will make your individualized plan with assistance from a number of other medical providers at the facility. The individualized plan will be sent for final approval to a group called the Gender Dysphoria Treatment Committee. That Committee should look at your plan and make sure it is a good fit for your needs.

Some types of care that they can add to your plan include hormone therapy and meetings with an endocrinologist. Endocrinologists specialize in hormones and how they control metabolism, blood pressure, cholesterol, hunger, thirst, body temperature and more. Hormone therapy may be recommended if the facility’s Primary Care Provider believes that there would not be negative physical effects. 

Sometimes, the plan also includes housing recommendations. Final decisions about your housing are the responsibility of the Department of Corrections. Every six months, you should get something called an Internal Housing Risk Factor Assessment. You can find that at the end of this document. This Assessment is to make sure that your placement is correct for your case and includes a review of any safety risks you may be exposed to. 

If you are going to be transferred, then the facility has to follow a special Transportation plan called “103 DOC 530, Inmate Transportation”. This is not available to the public, but you can ask someone for a copy of it and they might provide one. 

Also, once you have been identified as Gender Non-Conforming, you have a right to shower separately from other people in your facility. This rule is part of a document called 103 DOC 750, number 11, which you can find here. Whether you have a “Gender Dysphoria” diagnosis or not, you should be allowed to shower, perform bodily functions, and change your clothing without non-medical staff of another gender viewing your body, except if there is an emergency. 

What if the Gender Dysphoria Treatment Committee doesn’t approve my plan?

If the Treatment Committee doesn’t approve your plan, they need to provide specific and justifiable reasons in writing. Their reasons need to explain why they are denying the recommended treatment. They have to base their decision off of proof that your treatment plan presents an overwhelming security, safety, and/or operational concern.

What are my rights once I have a treatment plan? 

Your treatment plan should contain at least three parts. You should be able to participate in at least monthly individual appointments with the facility’s mental health provider. Your treatment plan should also have personalized recommendations about clothing and canteen items that are approved for your use. If you are a woman seeking to be reassigned to a female facility, then you should be able to purchase clothing items and articles available to male individuals as well as female individuals with the same security clearance as you. You can find a full list of the types of items you are allowed to purchase and keep here. 

If there are parts of your Treatment Plan that you do not want to participate in, then the facility should write those down and make potential modifications to the plan if medically necessary. 

If you already took hormones before entering your facility, then you should tell the PCC that as soon as possible. They will want to review your Release of Information and prior medical records so that they can continue your care. If you don’t want to give them a Release of Information, then you don’t have to, but that may mean that your care plan changes and you can’t access hormones or other medical care you want. 

Is there any way for my treatment plan to be taken away?

There could be a time that the facility decides that your treatment plan presents an “overwhelming security, safety or operational” difficulty. If they want to make that claim, then the Director of Behavior Health has to refer the treatment recommendation to two people: the Deputy Commissioner of the Prison Division, and the Deputy Commission of Re-entry. They will complete a “security review”, which takes into account your personal history, how long you have been at that facility or other facilities, and your current situation.

If those two people agree that your plan presents a security, safety, or operational problem, then they have to forward your plan to the Commission for a final review. If the Commissioner agrees and wants to reject your treatment plan, then that security review needs to include specific and justifiable reasons for denying it. The review also needs to be in writing. It has to be completed within 60 days. 

What is the Prison Rape Elimination Act? 

The Prison Rape Elimination Act (PREA) is a federal law passed in 2003. Under PREA, rather than automatically assigning people to a facility, transgender and intersex people are assessed for potential safety threats and housed “on a case-by-case basis” according to gender identity. Correctional staff have to consider housing and program assignments at least twice a year to review any threats to safety experienced by transgender and intersex people living in prison. 

According to the law, they also have to take into account your own view of your safety. They are not allowed to separate you for housing or other program placements based solely on your LGBT status. 

PREA also protects “involuntary segregation”, or the removal of a person to a different housing assignment against their will. You cannot continue to be kept in a different part of the prison against your will unless prison officials have determined that there is no other way to keep you safe. They have to make that determination within the first 24 hours if they do place you in separate housing against your will. People cannot be segregated against their will for more than thirty days, and they must be given access to all of the same work, educational, and programming opportunities as any other person.