The purpose of this chapter is to discuss the issues associated with law enforcement and the LGBT community . It will explore the structure of law enforcement in the USA, the role that law enforcement plays in the criminal justice system, and the current relationship between law enforcement and the LGBT community . It will also focus on the victimization of LGBT elders, the criminal justice response, and the need for better outcomes. Additional discussion will be presented addressing the legal structure that impacts law enforcement response and the need to understand the interaction between LGBT elders and the criminal justice system. The chapter will also examine law enforcement training and possible prescriptive actions needed to reduce elder LGBT victimization.

Historically, a challenge of law enforcement has been “policing” a diverse population. Confronted with daily contact that can often be viewed from the complex perspectives of both the officer and any individual, the risk of misunderstanding can be great. This is particularly true of the officer’s interactions with what is often characterized as the “minority” community. This could focus on such elements as race, gender, and sexual orientation. This chapter will specifically address LGBT issues and the complex interactions with law enforcement. The challenge will be in not only addressing the concerns of the LGBT community as a whole but also the elders who identify as LGBT.

The primary function of all law enforcement agencies is to protect the public and ensure that laws are obeyed. Law enforcement officers are charged with the duty to enforce laws created by legislative bodies and are most often the gatekeepers to the broader criminal justice system. The system is comprised of law enforcement, prosecutors, courts, and corrections. As a rule, the focus of law enforcement is on investigating crimes. All elements of the criminal justice system share a common ethical principle of equitably enforcing the law and protecting the public. Generally, applying this principle means that the system owes a duty to the community and to the public at large, rather than to an individual victim. Any criminal conduct is viewed as an act against the entire community and not just a private wrong. It is critical that any issue involving law enforcement includes a comprehensive understanding of the structure and function of law enforcement at every level (Brandl et al. 2007).

The complexity and diversity of the law enforcement function in the USA is not often understood. Media and television entertainment frequently present a false picture of the nature of policing at every level. Popular shows such as Law and Order: SVU and Cops (one a creative product, the other a reality show) never truly present the complexity of the average officer’s day. The dramatic depictions never address the fact that there are over 17,000 law enforcement agencies in the USA at the local level (United States Department of Justice 2011). Television most often creates the impression that every agency is similar to those in New York or Los Angles and has vast resources and expertise to apply to every case. In fact, over half of the law enforcement agencies in the USA have less than 10 personnel (United States Department of Justice 2011). We are a nation that prides itself on the ability to provide law enforcement services, even at the lowest level of government.

This fragmentation of policing makes it difficult to draw wide inferences about police–community interaction. This situation is further complicated by the fact that there is no national standard addressing the delivery of police services in an individual community. The very definition of what constitutes a criminal act is determined by each state. Therefore, the statutory construct that establishes the legal environment for law enforcement is state-specific and can vary to a large degree from state to state. Differences in state and local perceptions and experience affect how officers approach the LGBT community . Recent legal issues such as defining sexual behavior, marriage equality, and discrimination directed toward LGBT individuals have demonstrated and highlighted cultural differences in every state. The relationship between sexual orientation and the code of laws of individual states only compounds the difficulty in discussing police behavior and the LGBT community.

Unfortunately, and all too often, the legal structure has defined the LGBT community in terms of behavior that has been codified as criminal. Although the courts have overturned many of these criminal statutes, they can often create an environment for law enforcement in which LGBT individuals are viewed as “criminals” rather than victims. Specifically, this is found in an aggressive enforcement or moral’s offenses such as solicitation and indecent exposure. Often this is done in the context of community policing.

Before addressing specific issues of the LGBT community and law enforcement, it is important to clarify the concept of “protect and serve” and the reality of providing police services. While the entire concept of protect and serve makes an ideal short statement to put on the side of police vehicles, it does not explain who gets “protected” or “served.” The words do not provide sufficient guidance or detail as to the complex nature of responding to community calls for service.

Though the primary focus of law enforcement is to respond to reports of suspected criminal activity, in many communities law enforcement is the only public service agency with a 24-hour, 7-day a week response capability. Other public agencies that have this ability are often limited in their mandate to respond (e.g., emergency medical services, fire departments). It is often the case that the public contacts law enforcement to respond to incidents that are clearly not related to any criminal offense, an example being civil disputes. This type of response represents the “serve” function.

Since the 1980s, with the rise of community policing, the “protect” part of the law enforcement function has changed significantly. Community policing was based on the recognition that law enforcement had become “removed” from the environment that they were serving. These efforts were an acknowledgment that law enforcement had a larger role to play in creating safe communities that addressed the concerns of all members of a community. It was not simply responding to calls from the public.

The actual outcomes of this approach have not always been effective; however, they do show that law enforcement has made an effort to promote a more inclusive service approach. This approach has not always reduced the tension between certain segments of society and the police. A recent Executive Session on Policing conducted by the Harvard Kennedy School and the National Institute of Justice focused on the concept of “rightful policing,” an approach that challenges concept of simply enforcing the laws but on the importance of the perception citizens have of their contact with the police. Simply put, it is critical that this contact be respectful and legitimate, an important concept when addressing the concerns of the LGBT community (Meares 2015). Critical to all this discussion is an understanding of whom law enforcement is protecting and serving with respect to the LGBT population. In a research brief prepared by the National Center on Elder Abuse (National Center on Elder Abuse 2013), it has been estimated that 9 million Americans identify as LGBT, and of those, 1.5 million may be over 65. These data provide a clearer picture of who may be in need of both service and protection. It is probably safe to assume that these numbers may underestimate the size of LGBT persons because of reluctance to disclose their sexuality. While valid victimization rates for this group are difficult to ascertain, LGBT elders have responded to studies indicating that they have been victimized due to sexual orientation and gender identity. The National Center on Elder Abuse emphasizes that such incidents take place in both community and facility settings and that the LGBT population has been largely ignored in research (Walsh et al. 2011). This situation is further compounded by barriers to reporting abuse, such as homophobia, fear of authorities, and legal issues (Cook-Daniels 1997).

LGBT elders have been subjected to various forms of abuse (see Chap. 17). The most prevalent is verbal abuse based upon their sexual orientation and gender identity. Financial exploitation of gay elder men is also an issue (Meyer 2011). However, this situation is clearly seen in the one form of victimization that almost always creates a law enforcement response—domestic violence. Many states have domestic violence statutes that do not recognize same-sex relationships in the statute (Network for Public Health, n.d.). Law enforcement then must rely on general criminal statutes pertaining to assault. The ability to provide victim services such as orders of protection is not available because of this deficit in the law. The lack of legal recognition of relationships can hamper law enforcement attempts to craft a solution that holds an offender accountable and protects the victim. LGBT domestic violence is a significant problem and one that most often confronts law enforcement. The ramifications of reporting domestic violence by a victim can be extremely negative. Doing so can result in family rejection, isolation, and a lack of concern by the community at large. Coupled with a lack of services and a legal structure that supports the victim, it is fair to assume that reporting will be very low.

Of special concern is the treatment of transgender persons. The most frequently occurring issue is the profiling of transgender persons as “sex workers.” Other issues may be targeting these individuals by asking for identification and “policing” of public bathrooms designated as male or female. Sometimes, this law enforcement behavior may be coupled with racial profiling that treats these individuals as potential “suspects.” A difficult issue for law enforcement is how to handle transgender persons if they are arrested. The most common practice is to place them in cells based upon genitally determined sex rather than their gender identity. While this places them at great risk of abuse by fellow detainees, it should be understood that this creates a practical challenge for jail/corrections administrators (Amnesty International 2005). The Atlanta (GA) Police Department adopted a policy outlining how to interact with transgender, intersex, or gender nonconforming individuals (APD.SOP.6180). It requires that officers treat these persons in a manner appropriate to their gender identity even though it may be different than that assigned at birth. It also addresses concerns with how this will be recorded on written documents and does so in way that meets the requirements of the agency and the individual (Atlanta Police Department 2014).

In 2014, the United States Department of Justice began a program addressing the issue of law enforcement and transgender persons, particularly women (The Crime Report 2014). It will be a program that will provide transgender cultural training to local agencies across the country. The core dilemma for law enforcement is developing policies that address such issues as how to address transgender persons, and how are they recorded on a report and the housing in detention. All require not only sensitivity by the officer but administrative procedures that acknowledge the issue but still meet the legal and data collection requirements of the criminal justice system (Police 2013).

Of significant importance is the lack of victimization data for elders. That fact, coupled with the hidden issue of LGBT elder abuse, makes any discussion of law enforcement response difficult. It must be understood that law enforcement can be “data driven.” Any evaluation of police services often relies upon crime statistics. The primary vehicle for this discussion is the reporting mechanism used nationally by most law enforcement agencies, the National Incident Based Reporting System (NIBRS). It utilizes standardized definitions of criminal behavior and captures data with respect to the level of crime by type, victim, and offender characteristics and the relationship between them. This issue becomes critical when attempting to evaluate the impact of crime on the LGBT community. It is almost impossible to determine victimization levels given the manner in which the data are captured. Consequently, it is difficult for law enforcement to make a data-driven case that there exists a problem of crime directed toward the LGBT community and almost impossible to focus on elders. This is most important when law enforcement is developing problem-based enforcement services. Much more needs to be done in this area.

The relationship between the police and the LGBT community has historically been an adversarial one. The criminalization of same-sex behavior has put law enforcement in the position of enforcing laws that specifically target the LGBT community. This creates a climate in which LGBT persons are not protected from criminal behavior of others (Amnesty International 2005). Also, this creates conflict whereby same-sex conduct can result in an individual being treated as either a criminal or a victim, depending on the circumstances and the law enforcement response to a specific incident. Police interaction with individuals is often determined by the officer’s biases and the department’s organizational attitude toward a particular group. This is reflected in the quoted newspaper article at the beginning of this chapter. The Amnesty International Report (2005) discusses police targeting of LGBT individuals and selective enforcement of moral offenses such as lewd conduct and solicitation. For example, a common occurrence is a transgender person walking down the street being stopped and questioned about solicitation. This targeting creates a large barrier to addressing positive change and reflects current practice and policy of many law enforcement agencies.

This targeting of moral offenses also reflects a concept in Community-Oriented Policing that targets “quality of life” issues. This approach is designed to create a safer community by aggressively enforcing laws against minor offenses such as public drunkenness, loitering, vandalism, or public urination. The prime example of this style of policing is found in the New York Police Department. Although many contend that this has led to a significant reduction in overall crime in New York, it has also led to accusations of targeting minority populations (Amnesty International 2005). Therefore, it is also an accurate observation that these quality of life offenses can also be used to target the LGBT community.

A survey by Lambda Legal of LGBT individuals as well as those with HIV found that 73 % of respondents (1682 of 2376) reported negative face-to-face contact with the police. These interactions are divided between those that address misconduct and those that demonstrate an unsatisfactory response. Overall, the results demonstrate not only a pattern of hostile attitudes but also an inadequate response to reports of victimization (Lambda Legal 2012).