Critical criminology has been around for decades. In this context, “critical” simply means “Marxist.” Thus, critical criminology is a branch of the discipline that seeks to transform the criminal legal system on Marxist principles. Recently, critical criminology has branched into more specialized areas of reform. For example, feminist criminology has become a distinct branch of critical criminology with its own quarterly journal. More recently, queer criminology has emerged as another branch that is beginning to influence graduate and undergraduate programs across the country. But this branch, like its sisters, is incoherent and tendentious.
A few years ago, the Department of Sociology and Criminology at the University of North Carolina, Wilmington, where I have been teaching for twenty-five years, offered students a senior seminar in queer criminology. Only a small percentage of the roughly 300 criminology majors took the course. Within just two years, however, the department decided to require a new undergraduate course called Criminology Theory based loosely on another course, which was simply called Criminology. The Criminology Theory course proposal included three mandatory texts. Among the three was Queer Criminology: New Directions in Critical Criminology (2015), by Carrie Buist and Emily Lenning. Given the breadth of the course, and that only three texts are required, imposing a requirement that all 300 majors read the Buist and Lenning text suggests that my department has identified queer criminology as necessary for all criminology undergraduates.
Upon close inspection of Queer Criminology, though, it seems that Buist, an assistant professor of Criminal Justice at Grand Valley State University, and Lenning, a professor of Criminal Justice at Fayetteville State University, make philosophical claims that are untenable and empirical claims based on scant evidence. The present paper critiques the assumption that Queer Criminology should be required for criminology majors and evaluates the academic merits of queer criminology as a distinct branch of critical criminology.
Defining the Parameters of Queer Criminology
To lay claim to status as a distinct branch of academic inquiry, a breakaway line of inquiry should define the terms, subjects, methods, and principles of inquiry that make it distinct. For example, feminist criminologists should explain their use of the term “feminist” and how it encodes a kind of study of criminology that involves distinct objects, methods, and principles. Similarly, queer criminologists should first explain their term “queer.”
In a statement that is somewhat unusual among those professing enough expertise in an academic area to require its study by undergraduates, Buist and Lenning confess their inability to define the parameters of the subdiscipline about which they have written a freestanding textbook. They candidly admit that they “reject essentialist attitudes because they fail to fully recognize sexual and gender identity and its fluidity among some queer individuals, especially trans folk.” In other words, there are no objective criteria for determining “queerness.” One simply defines oneself, at least temporarily, as in some way “queer,” and researchers must take such declarations as uncontestable data.
As an example of the subjective nature of “queerness,” the authors refer to someone who was born female, identifies as lesbian, transitions to male, but still chooses romantic relationships with women. When facing the question of whether such a person should be identified as a lesbian, and on that score “queer,” or alternately heterosexual, and therefore (apart from the transition) “non-queer,” they offer the following: “The only person who can accurately answer that question would be the person who has experienced this transition.”1
In the introductory remarks concerning the parameters of their area of expertise, the authors argue, “Deconstructing categories allows for a more organic way of knowing.” They explain that the advantage of deconstruction is that “It allows for a wider range of research and theorizing to take place.” To that end, “Queer criminology should be both identity driven and deconstructionist.”2 The authors seem unconcerned that the development of queer criminology as a scientific subdiscipline may not be possible if no one can agree upon what the term means. They only hint at a possible problem when they say, “We contend that while queer may mean one thing to someone, it means something quite different to another.”3
Nonetheless, the authors conclude that being unaware of the parameters of the basis upon which one is marginalized actually helps understand one’s degree of marginalization. Furthermore, the authors explain that not being able to agree on the meaning of words is actually beneficial in relation to the construction and transmission of knowledge. They explain, “Those [deconstructed] categorical descriptions can allow for marginalized groups to understand their marginalization in new ways and draw support from each other, moving them to the center of knowledge construction.” The goal appears to involve deconstructing old categories so as to construct new ones, which is consistent with the dialectical mode of Marxism.
Nevertheless, in the same mode, just a few sentences after committing themselves to knowledge construction, the authors admit that they have “come to understand that truth can be subjective.”4 In other words, there is no distinction between belief and knowledge. It is upon this shaky philosophical foundation that they search for evidence of oppression against an objectively indefinable group.
Oppression at Home and Abroad
The decision to teach queer criminology to American criminology majors, most of whom will be seeking employment in the American criminal justice system, suggests that queer individuals suffer from unique problems in the U.S. criminal justice system. That assumption is made explicit when the authors claim that the (similarly undefinable) queer “community” has experienced and continues to experience “differential and disproportionately negative experiences within the [American] criminal legal system from all aspects of the system.”5
This claim, however, is unsupported by any academic references. Nonetheless, the authors reassert and expand upon the claim in stating that, “[b]ased solely on sexual orientation and or gender identity, people continue to face discrimination, harassment, victimization, torture, and even death in the United States and abroad.”6 That is a significant restatement of the original claim. In building a case for reforms within the American criminal justice system, the authors rely in large measure on information about foreign countries. For example, the authors stress the need to combat “[p]olicy that has for the most part worked to keep Queer people marginalized” around the world. They add, “Certainly, this is the case in over 78 countries around the world where same-sex consensual sex is illegal.”7
The criminalization of (yet to be deconstructed) “same-sex” consensual sex is indeed important to analyze. But such criminal prohibitions have been forbidden ever since the Supreme Court deemed them to be violations of the Fourteenth Amendment.8 Thus, it is difficult to imagine what American reforms the authors are seeking due to the existence of these foreign laws. It is also difficult to imagine the relevance such advocacy has for American criminology majors, few of whom will pursue careers abroad.
Equally irrelevant is the authors’ note that at least five countries impose the death penalty for consensual sodomy, asserting that this is “a reflection of a global culture of homophobia.”9 This sweeping generalization, taking five countries for the whole world, reflects the authors’ conclusory position as advocates rather than an investigatory position as inquirers. More importantly, the American legal system is quite far from the systems evident in those countries. Here, even non-consensual sex cannot be punished by death.10 This general prohibition holds true even in cases of aggravated child rape.11 The authors’ concern in this area is simply non-existent within our own criminal legal system.
To supplement their broader claims of global marginalization and oppression, the authors turn to assertions of global discrimination at the hands of police officers. They state, “Transgender men and women, but especially trans women of color, experience physical and emotional abuse from police throughout the United States and abroad based solely on their gender identity.”12 These claims, which conflate domestic and foreign oppression, also lack any academic references.
The authors’ line of inquiry might be more credible if it were less tendentious. After all, the authors should succeed in carving out queer criminology as a subfield before turning to queer American criminology, so looking to worldwide data could be relevant initially. But going down this road, they completely erase the influence of Islamic law. Instead, when they mention African countries, they declare that these countries’ oppressive legal systems are due to the lingering effects of British colonialism. The authors state that such laws reflect “British colonial values and not necessarily the values of the countries now left to enforce them.”
The decision to blame British colonialism while ignoring the influence of Islam is particularly problematic because the authors base their conclusions solely upon research that implicates Islam. That research, by P.R. Ireland, concluded that the size and influence of the Islamic population is a factor in explaining varying levels of homophobia among different African nations.13
Through such omissions, the authors appear to link America’s criminal legal system to those throughout the world, generally through association with Western civilization and outdated British law. Since our own criminal legal system is based largely upon English common law, the authors imply that we must be ever vigilant to examine the possible lingering effects of British homophobia upon our pursuit of justice here in America.
Oppression in America
The effort to establish a pattern of mistreatment of the queer population in the American criminal justice system begins with the claim that lesbian defendants are often “mired in hate speech” at the hands of prosecutors in criminal trials. Once again, the claim is unsupported by evidence. Yet Buist and Lenning pursue the claim that this “hate speech” takes the form of regression into “conflated binary arguments regarding masculinity and femininity.”14 The implication of their unsupported assertion is that derogatory remarks by lawyers or judges may contribute to disproportionate incarceration rates for the self-identified queer population.
The authors soon turn from speech to action and from homosexuals to transsexuals. This is presumably because “trans” people are more likely to be identifiable as “queer” by law enforcement officers than are gays, lesbians, and bisexuals.
Yet, the authors’ key evidence does not focus on law enforcement officers. The authors state, “Within the first five weeks of 2015, five trans women of color had been murdered. While police officers were not directly responsible for their deaths, this speaks to the ‘matrix of domination’ and takes into account the many characteristics that impact the intersectionality of oppression.”15 By “intersectionality,” the authors mean the compound effects of victimization suffered by those who are simultaneously members of two or more marginalized groups—in this case “trans,” female, and “of color.” Here, the authors do not disentangle the motivations of the murderers to determine whether “trans” animus was a significant or determining factor.
Furthermore, the term “oppression” in this context is problematic and probably irrelevant to American criminal law enforcement. When citizens hurt other citizens, criminology tends to use the term “victimization.” In contrast, “oppression” is usually reserved for victimization at the hands of government. In this case, there is no evidence that the government caused the murders. Perhaps, claiming that police officers were not “directly responsible” for the deaths means that they were indirectly responsible by turning a blind eye. But mere innuendo by the authors is not evidence.
After raising the issue of potential police negligence, the authors try to make a case for oppressive police brutality. As is the case with other key terminology in the book, however, the authors struggle with precision and choose a broad, subjective conception of their term. They admit, “It is difficult to define what might be considered police brutality.” They posit, “[O]ne broad definition is citizens’ judgment that they have not been treated with full rights and dignity by police as expected in a democratic society.”16
At this point in their presentation of their topic, it is safe to conclude that the authors have relinquished control of the study of queer criminology to the population that is being studied. In this example, they seem to be arguing that “queerness” leads to “brutality.” But, by the authors’ own admission, the very definitions of “queerness” and “brutality” lack any objective criteria. The queer population gets to decide what is “queer” and what is “brutality.” It is difficult to discern what role, beyond mere anthropology, the social scientist plays in the process of intellectual inquiry.
The authors do appear to recognize that they need to provide more than zero evidence of potential for research in American queer criminology. Indeed, in an attempt to establish a “school-to-prison pipeline” wherein LGBT youth are targeted by school authorities, ultimately winding up as victims of the “criminal legal system,” Buist and Lenning rely on some scant secondary data. One example they point to is the research of Burdge and associates, which claims that LGBT youth of color perceive that they are under greater surveillance by school officials than their non-queer peers.17 But there are serious methodological problems with the data. Among them is that the study does not report a sample size. Compounding the problem is the fact that the claims of increased surveillance of LGBT youth of color are based on just two interviews of the allegedly oppressed. One reports that his increased surveillance was due to race, not queerness. The other interviewee provides a hearsay report on an incident involving another youth who was not interviewed.
In the end, Buist and Lenning are armed with essentially no evidence of a “school-to-prison pipeline” among LGBT youth. Nonetheless, they appear satisfied enough to turn away from inquiry to policy, embarking upon a discussion of what they consider to be unique correctional issues facing this small, self-defined segment of the prison population.
Queerness and Corrections
Buist and Lenning eventually delve into a topic that is relevant to the administration of criminal justice in America and which deserves at least some public policy attention. The topic is the need to address unique safety considerations that arise with so-called queer offenders. After all, a key factor in prison assignments is the sex of the offender, and an imprisoned offender who finds another sexually attractive can present unique challenges. The authors lament what they call “The state’s inability to assess their unique safety requirements beyond isolating queer offenders.” However, they quickly overstate the claim by asserting that this inability “can be argued is a violation of the Eighth Amendment’s cruel and unusual punishment provisions.”18
The inability of the state to keep up with rapidly increasing demands based on an ever-broadening definition of queerness certainly falls short of violating the Eighth Amendment to the United States Constitution. Nonetheless, the authors press on by citing scenarios they consider problematic. To state one example, “If the individual has not had medical sex reassignment surgery, they will be placed in a prison that mirrors their biological sex. Psychologically, this can be damaging to the incarcerated person as well as being problematic for them regarding both physical safety as well as overall health.”19
How big of a problem is the placement of queer offenders for the correctional system? The authors first estimate that there are seven million people under correctional supervision in the United States without bothering to mention the fact that two-thirds of those under supervision are on probation or parole and, therefore, not incarcerated. Next, they assert without evidence that ten percent of the prison population identifies as queer. This is based upon the authors’ assumption that ten percent of the general population identifies as queer. Finally, after acknowledging that most people “under correctional supervision” are not actually incarcerated, they speculate that it is “entirely possible, and is safe to assume, that queer people are disproportionately incarcerated.”20
This line of reasoning suffers from a couple of serious flaws. First, it is simply not appropriate to estimate without supporting evidence that ten percent of the population at large self-identifies as queer. Second, although virtually anything is “entirely possible,” it is not “safe to assume” that “[q]ueer people are disproportionately incarcerated” and therefore make up more than 10 percent of the prison population. If both assertions were found to be true it would translate into hundreds of thousands of queer folk presently incarcerated in the United States. But we don’t know whether either assertion is true because neither estimate is derived from valid sources or calculated using defined statistical methods.
Nonetheless, the authors provide policy recommendations based upon these unproven assertions. For example, they state, “With the disproportionate number of queer youth in the juvenile justice system, it is imperative to develop and implement regulations and safety standards to decrease and eliminate the victimization they experience.”21 Once again, overrepresentation is simply assumed without evidence.
The authors’ disregard for empirical evidence is accompanied by a similar indifference for legal evidence. Having argued that housing transgendered inmates based on their biological sex is cruel and unusual punishment, they go a step further by asserting, “It can be (and has been) argued that denial of treatment up to and including sex reassignment surgery is a violation of the Eighth Amendment’s protection from cruel and unusual punishment.”22 The authors incorrectly cite Colopy in the next sentence as if to suggest that the reference supports their cruel and unusual punishment claim. In point of fact, Colopy, in an article written prior to his graduating from law school, specifically rejects the claim that the Eighth Amendment confers a right to sex change on demand.23
The authors further conflate their constitutional argument by arguing that giving diabetic prisoners insulin while refraining from giving a prospective trans inmate hormone injections is “discriminatory medical care” and thus “cruel and unusual punishment.”24 Such a comparison fails for an obvious reason: denying insulin to diabetic inmates is life threatening while denying hormone injections to trans inmates is not. The authors conclude the discussion of queerness and corrections by stating their agreement with the European Court of Human Rights that “forced segregation for protection should also be considered a violation of human rights.”25
From the lack of evidence and the extensive focus on policy preference, it is clear that queer criminologists seek to engage in public advocacy, with well-defined goals that include granting inmates the power to determine their own sex and, thus, the correctional facility they will be confined to (male or female), as well as to demand state funded sex reassignment surgery. These policy preferences, rather than academic inquiry, drive their work.
Any public policy scholar, however, could easily see potential problems with implementing the authors’ favored policies, and would expect such problems to be addressed. For example, convicted serial rapists who later claim to identify as female would be able to relocate on demand to correctional facilities housing females. Such a situation would obviously threaten the safety of non-queer offenders.
In the end, the idea that queer offenders should be given unlimited authority to define themselves is one that has policy consequences that activists who hold themselves out to be social scientists must take seriously if they deserve a place in academia and in serious undergraduate classrooms.
In the closing pages of their text, Buist and Lenning revert to covering subject matter simply irrelevant to the study of the criminal legal system. This time, they take aim at Religious Freedom Restoration Act (RFRA) laws, claiming “they simply allow for others to discriminate against the queer community based on religious beliefs.”26 To state the obvious, RFRA laws do not allow unfettered discrimination against the “queer community.” They allow a limited defense for the religiously devout who, for example, might refer a client to a non-objecting service provider to carry out activities that would violate only the most obvious religious tenets. They do not, in any circumstances, allow the prevention of service delivery to LGBTQ persons. RFRA laws are, in other words, an accommodation for the religiously devout of the type that are common when legitimate rights and liberties conflict, a type of compromise necessary for the proper exercise of liberty in a free nation, and for which LGBTQ advocates have shown little tolerance.
The larger point here, of course, is that RFRA laws are not germane to the study of criminology. They concern civil justice matters, not criminal justice statutes. Nonetheless, Buist and Lenning assert that RFRA laws “should serve as a reminder of the ways in which queerness is criminalized and bodies are controlled by the state.”27 The claim that RFRA laws are relevant to criminal justice because they remind us of the criminalization of queerness is simply careless.
In a final plea for the relevance of queer criminology, Buist and Lenning complain that the discipline of criminology itself has been responsible for the promotion of homophobia. They cite Woods, who complains that early criminologists were guilty of promoting the stereotype of homosexuality as deviant.28 This is problematic for two reasons, which correspond to the two principal ways criminologists define deviant behavior: normatively and reactively.
When criminologists define deviant behavior normatively they are stating that behavior is considered deviant if it is statistically rare. In other words, deviant behavior is that which only a tiny fraction of the population exhibits. When criminologists define deviant behavior reactively, they are stating that behavior is considered deviant if it produces social stigma. From this angle, deviant behavior is that which the vast majority of the population condemns even if it is widespread.
Buist and Lenning make it impossible to define deviant queer behavior normatively because they refuse to assign any objective characteristics to queerness. By their own admission, unlike historically criminalized actions such as homosexual behavior, the concept of queerness is fluid and defies quantification. Thus, the alleged assignation of deviance of queer behavior among criminologists must be defined reactively. Within that model, the authors’ insistence that we are plagued by a “global culture of homophobia” bolsters the idea that queerness fits squarely within the definition of deviant behavior. Here the authors ought to have taken pains to connect this broad accusation with their particular accusation of criminologists. Nevertheless, it is ironic that queer criminologists are themselves guilty of promoting the classification of homosexuality as a form of deviant behavior by means of their reactive analysis.
Critical criminology has always been ideologically driven, but it has not always been focused on trivial matters. Indeed, in its initial stages, critical criminology focused upon the need to address serious issues of social class within the study of criminology. Theoretically speaking, that made sense given that critical theory is the academic offspring of Marxism, concerned first and foremost with class hierarchy. Empirically speaking, this original focus was defensible because there is copious evidence that social class is a predictor of criminality.29
Yet some of the branches or subsets of critical criminology that emerged subsequently have made less sense, both theoretically and empirically. For example, feminist criminology emerged as a powerful force despite clear evidence that women have always been an underrepresented demographic both in terms of crime commission and incarceration. Like feminist criminology, queer criminology is gaining traction without any evidence that the queer population is disproportionately involved in crime or in any way systematically oppressed by the American criminal justice system.
Evidence that queer criminology is gaining traction can be seen in the growing number of books dedicated to the subject. As of this writing, there are at least five books on the subject, all of which are designed for use in the college classroom. These books are not being ignored. In fact, the Buist and Lenning book won the American Society of Criminology (ASC) critical criminology book award in 2016. The fact that the book would receive such an honor from the ASC, which is the largest academic society in the discipline, shows that queer criminology is no longer on the fringes of the discipline.
Queer criminology is now beginning to be recognized in some of the nation’s top criminology programs. For example, Michigan State, a top ten program, has seen collaboration among professors and Ph.D. students focusing on queer criminology issues. At the University of Florida (UF), which has been a top national program for decades, the influence of queer criminology is more visible. Several professors and graduate students claim expertise in the area. Like UNC Wilmington, where I teach, students at UF are required to take a criminology theory class, which requires readings in queer criminology. Unlike at UNC Wilmington, however, students at UF are also assigned queer criminology readings in their policing courses.
One obvious explanation for the expansion of queer criminology is that it provides a platform for professors to expound on their political beliefs in the classroom. But it does little to prepare criminology students for work in the field of criminal justice.
Ultimately, efforts to further politicize criminology could backfire. Students are required to earn college degrees to advance in most law enforcement agencies, but few agencies require degrees from within the field of criminology. Students frustrated with the radicalization of criminology might very well take it upon themselves to consider other academic disciplines. They wouldn’t be wrong to do so.