Know Your Rights: Criminal Justice Rights in Maine

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Police Harassment

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Criminal Justice | Police Harassment | Maine

Maine Police Harassment Q&A

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. 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.

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 wellbeing 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.

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, 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.

Resources

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

Cases & Advocacy

To see Criminal Justice cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Criminal Justice” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Criminal Justice in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Criminal Justice” and under “By Location” click on “Maine.”

Criminal Justice | Criminal Sex | Maine

Maine Criminal Sex Q&A

Does Maine have a sodomy law?

No, Maine long ago repealed its sodomy law.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

If it’s not illegal for LGBTQ+ people to have sex, why are people still getting 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:

occurs in a public place (including motor vehicles on public ways), or
occurs in a private place with the intent that it be seen from another public or private place, or
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.

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— regardless of 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 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.

Does Maine have a sex offender registry 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 registerable offense under Maine law.

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

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/.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16. 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. 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.

Resources

Information About Maine Sex Offender Registry: Maine Sex Offender Registry

Cases & Advocacy

News & Press Releases

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

I’ve just been convicted. How do I get assigned to the right facility?

When you first arrive at a new facility, an officer should conduct an “intake” with you. This is the best time for you to share if you are transgender or intersex. You can also tell the intake officer if you have a history of being “perceived”, or others seeing you as, transgender or intersex, or if you have recently had sex-reassignment procedures or any similar care. If you have already had sex reassignment surgery, then you should tell your intake officer immediately. Maine’s policy is that people who have had sex reassignment procedures should be housed in accordance with their gender as reassigned.

Once you tell the intake officer, they are responsible for contacting a person with the role of Chief Administrative Officer or someone who works for them. That intake officer should tell the Chief Administrative Officer if you are transgender or intersex. It is also possible that a defense attorney or prosecutor, a guardian, a department or jail staff member, or another officer of the court has already said that you are transgender or intersex. If someone else has told the facility, then the intake officer is still responsible for telling the Chief Administrative Officer even if you haven’t.

If the Chief Administrative Officer receives information from someone about your case before your first intake, then they might make a decision about your initial strip search and housing placement before you arrive.

What happens after my intake screening?

If your initial strip search has not been done before your intake, then the Chief Administrative Officer should consider different factors, including your personal preference, about the gender of the officer who will conduct it. That Chief Administrative Officer will document the reasons for choosing a particular officer in your Corrections Information System (CORIS).

The Chief Administrative Officer or someone who works for them will also decide where the best place for your immediate housing is. They will make that decision based on different factors including your risk to safety. They should document all the reasons for their decision in your CORIS file. Your housing assignment might change after they conduct a more in-depth review. In the meantime, your strip searches will be conducted by staff members of the same gender as other people who are in the unit you are assigned to. If the Chief Administrative Officer wants to assign a different person to search you, they will put this in your CORIS file.

You should be given an opportunity to use the bathroom and shower privately until a full assessment takes place.

If you are already on hormonal medications when you enter the facility, you should be able to continue using them. You can continue to use them at least until you have an appointment with the facility’s physician, physician assistant, or nurse practitioner. Your facility has to follow a policy about this called the Adult Facility Policy 18.7: Pharmaceuticals.

The Chief Administrative Officer should notify the facility’s Health Services Administrator as soon as they can about your case. The Health Services Administrator should prioritize your case so that they can make a determination about whether or not you have received a diagnosis of “gender dysphoria”, have received hormonal treatment, have received transgender or intersex-related medical procedures, or any other relevant medical assistance.

In order to do that, the facility will probably ask you for a release of information to get your healthcare documents. If you want to say yes, they will be able to look through those documents and hopefully more quickly decide how to move forward with your case. The Chief Administrative Officer will then decide if you need an evaluation for “gender dysphoria” or an expedited medical health assessment. They may also look for information from Adult Community Corrections to request information about how long they have known you were transgender or intersex.

If there is a safety issue relating to being transgender or intersex, you should let officers at the facility know right away. This could include risks to safety of yourself or of another person. It also includes anything that would require a change from your immediate housing placement that was made by the Chief Administrative Officer when you entered. The facility staff should follow department policy that sets out what to do in a situation like this. That policy is called the Adult Facility Policy 15.1: Administrative Segregation Status.

What is “Gender Dysphoria”?

Maine 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:

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);

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);

A strong desire for the primary and/or secondary sex characteristics of the other gender;

A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender);

A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender);

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).

What happens after the Chief Administrative Officer starts their review?

Within 30 days of your report, the Chief Administrative Officer should put together a team to handle your case. People on that team should include your Unit Manager at your facility, the Health Services Administrator, the Department’s Medical Director, the Department’s Mental Health Director, a member of the facility’s security staff, a member of the facility’s classification staff, and the facility Prison Rape Elimination Act (PREA) monitor. There may be one or more other people on the team as well if the Chief Administrative Office thinks they should be. For example, they may contact the Chief Administrative Officer or Department’s Director of Classification at the facility where you could be transferred to.

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.

What will the team do about my case, and how will they make recommendations?

The team will make the following recommendations about your case:

Whether male or female housing is more appropriate for you

Whether male or female staff will conduct searches

What property items you will be allowed to have

What your shower and toilet arrangements should be

Any safety or security precautions required

Any other relevant decisions.

The team should make these recommendations based on information available about your case. That includes things like whether or not you have a diagnosis for “gender dysphoria”, as well as any other relevant medical tests. If you haven’t had an assessment for “gender dysphoria” yet, then the team will decide if you need one. They will also decide if they want to request any other medical assessments.

In making decisions about your recommendations, the team will consider things like:

Your gender assigned at birth

Your views with respect to your own identity and safety, and whether or not those views have been “consistent”

Whether you have taken any steps toward sexual reassignment

Any of your “relevant characteristics”, like physical stature, tendency toward violence or predatory behavior, and vulnerability to violence or predatory behavior

Any relevant characteristics of other people with whom you might be housed or come into contact

Your correctional history (for example, if there are any previous management situations that impacted the safety of other persons or the security of the facility)

Whether you have any mental health concerns

Whether there are any perceived risks to the continuing safety and health of the prisoner or others.

What happens after the review is complete?

The Chief Administrative Officer or someone who works for them should make the final decision about the full team’s recommendations for your current facility. They will make decisions about your health care plan and transfer to another facility in conjunction with other people.

That final decision on the recommendations should be used to create a case plan for you. That plan might include an evaluation for “gender dysphoria”, for example. If it does, then you should be brought for an assessment for “gender dysphoria” or any other relevant medical assessment. Within 15 days of that assessment, the Chief Administrative Officer should share the results with your team and finalize its recommendations.

Even after that, the Chief Administrative Officer can also bring your team together periodically or any time appropriate to make further recommendations about your care. Any time that your team meets, as well as all of your recommendations, should be documented in your CORIS file.

Your unit management team is responsible for reassessing your case and housing situation at least every six months, or more frequently if it is necessary. If you experience threats or a change in safety, you should let an officer at your facility know. Your care team should give specific attention to any threats to safety you report.

I’ve been in prison for a while. What happens if I want to request a transfer to a facility that conforms with my gender identity?

It can be more difficult to request transfer if you’ve been in a facility for a while, but there is a procedure to do so. The main differences with asking for a transfer after you have already been in a facility are that, until a full review has been completed, you will not be placed in a different housing unit with people of a different gender than where you have been living. You will also not be given the opportunity to shower or use the bathroom privately.

The first step is to let staff at your facility know that you are transgender or intersex. From there, they should contact the Chief Administrative Officer of the facility. The Chief Administrative Officer should reach out to the Health Services Administrator as soon as possible after they receive your report. The process from there looks similar to what would have happened if you had requested the transfer from the beginning.

The Health Services Administrator should prioritize your case so that they can make a determination about whether or not you have received a diagnosis of “gender dysphoria”, have received hormonal treatment, have received transgender or intersex-related medical procedures, or any other relevant medical assistance.

In order to do that, the facility will need you to sign a “Release of Information” to get your healthcare documents. If you want to say yes, they will be able to look through those documents and hopefully more quickly decide how to move forward with your case. The Chief Administrative Officer will then decide if you need an evaluation for “gender dysphoria” or an expedited medical health assessment.

The Chief Administrative Officer will also ask staff at your facility and staff from other departments about whether they knew you were transgender or intersex or had perceived you to be before you made your own disclosure. They may reach out to the adult community corrections as well.

What if I disagree with the Chief Administrative Officer’s decision, or the team’s decision?

There are options if you don’t think that the Chief Administrative Officer or the team made the right decision about your custody level or if they did not approve a transfer. You can “appeal” this decision through the Classification Appeal Process. You can ask an officer for a copy of the Prisoner Appeal of Classification Decision form. Here is a link to Procedure J of the Classification System, which also describes the process.

To make an appeal, you have to submit the Prisoner Appeal of Classification Decision form within five business days of receiving your decision—this does not count weekend days or holidays. You should submit this form to the Department’s Director of Classification for custody level or facility transfer decisions, specifically. You should submit this form to the facility Chief Administrative Officer for all other classification issues.

Appealing the decision itself will not stop it from taking place, so you will have to remain housed in your current facility during the appeals process. Whoever you submitted your appeal to, such as the Department’s Director of Classification or the facility Chief Administrative Officer, should give you a decision about your appeal within 30 days. They can choose to approve the decision, reverse the decision, modify the decision, or “remand” the decision to the Unit Management Team (UMT) for further consideration. “Remanding” the decision means that the UMT will take over and decide what to do.

It is important to remember that the Department’s Director of Classification is the final authority for appeals about custody level or facility transfer. For all other appeals, the facility Chief Administrative Officer is the final authority.

If you want to appeal a decision made about your case that has to do with something besides custody and transfer, you can use the regular “grievance process” at your facility by filing a grievance.

All appeals will be put into your CORIS file.You can also find more information about Maine State Prison policies in this Handbook.