joey mogul

its so wild to me watching lgbt / gay historians try to shoehorn women into the legal prosecution of sodomy in modern history, cuz it really shows that they have a lot to learn about womens existence (or lack thereof) in formal institutions! like, one historian by the name of William Eskridge Jr. said that women werent considered responsible parties to sodomy until the late victorian era, once oral sex was added into sodomy laws. others say that you can find sodomy charges in witch trials, or, similarly, as part of stacking charges to try a disruptive woman.

but this approach to history is an entirely liberal and close-minded way of looking at the enforcement of cultural norms. the idea that the prosecution of same-sex sex in women can only be quantitatively understood through its literal prosecution goes under the assumption that the admittedly small sector of penal law that race and class privileged women can be held to is the be-all end-all of (in)justice.

that assumption is especially nefarious in this day and age because its becoming more and more possible and necessary to use intersectional frameworks to analyze history, and if you neglect to understand how race and class work in tandem with gender as matrices of oppression then youre doing a severe disservice to the women that are the most marginalized by these supposedly disparate forces. its an overarching trend in womens history for us to exist only in the informal context, a private realm of seclusion, while men exist in the formal context, a simultaneously privileging and disprivileging domain of institutional (in)justice. that the harsh punishment of women cant be easily materialized in formal legal proceedings is especially evident in the colonial violence enacted upon poor, black, immigrant, and native women; as Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock write in their book titled Queer (In)Justice: The Criminalization of LGBT in the United States:

The harsh punishment of Native and enslaved women did not require formal legal proceedings; that was simply colonial business as usual. Poor white women, free women of color, and immigrant women of low status and few financial means who transgressed sexual and gender norms were usually swept into the multipurpose, criminal legal archipelagos of fornication, prostitution, vagrancy, disorderly conduct, and “lewd, lascivious, and unseemly” behaviors. […] It is likely that [well-to-do white women‘s] sexual policing and punishment was often more privatized, that they were dealt with by their own religious communities or bundled off for indeterminate periods of forced confinement in homes or other places that were situated safely from public view.

so, moral of the story, if your historically-informed activism is centered around formal legal statistics then youre going to be leaving in the dust those that would most benefit from your work

Queer engagement with law enforcement cannot be accurately described, much less analysed, as a stand-alone, generic “gay” experience because race, class, and gender are crucial factors in determining how and which queers will bear the brunt of violence at the hands of the criminal legal system.
—  Queer Injustice:  The Criminalisation of LGBT People In the United States by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock

The “bad apple” theory–the idea that a few rogue individuals are responsible for poisoning the barrel, and their identification and removal is the simple cure–cannot account for the historically pervasive, consistent, and persistent systemic violence that characterises the criminal legal system. The barrel itself is rotten–that is to say, foundationally and systemically violent and unjust.

Ultimately, regardless of our intentions, all of us are accountable for the roles we play in reinforcing or dismantling the violence endemic to policing and punishment systems.

—  Queer Injustice:  The Criminalisation of LGBT People In the United States by Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock