Criminal Sex Laws that only target Gays and Lesbians

Criminal Sex Laws

Does New Hampshire have a sodomy law?


If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

Gay people are subject to the full range of laws as are non-gay people, so sex in public, or with underage persons, or without consent, or with force, are all illegal.  Sex for pay—as either the customer or the provider—i.e., prostitution, is also illegal.

Some gay people are arrested for violating the “indecent exposure and lewdness” law.86  This law targets behavior which is either:

  • fornication (i.e., intercourse), exposure of the genitals, or “any other act of gross lewdness” if the circumstances are such that a person should know those acts “will likely cause affront or alarm”; or
  • purposely performed in front of a child less than 16 years old.

As a general matter, a violation of the indecent exposure law is a misdemeanor.  However, if a person performs a sex act in front of a child who is 12 years old or younger, or if a person has previous convictions for indecent exposure in New Hampshire or elsewhere (for similar offenses), then the person can be prosecuted for a felony.87

What kinds of activities are forbidden in public?

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex—whether the sex is between people of the same-sex or of a different-sex.  But socializing and expressions of same-sex affection between adults that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs.  No one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, toe-tapping or other non-sexual touching.

Sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands.  It all depends on the circumstances.  For example, a person secreted in a private area, far off of a path behind bushes, or beyond fenced areas, has demonstrated by his or her actions a lack of intent to be seen by others, and can argue the circumstances are such that there was no reason to know his or her activities would cause shock or alarm.  Or activity may take place in a cruising area where there is a reasonable expectation that the people present would not be alarmed by or take offense to the activity.

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 sexual activity of non-gay people occurring outdoors, 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 park lands and rest areas—sometimes in uniform and sometimes as undercover decoys.  Either way, a person can be charged with a violation of the sex laws.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.88  However, if the person is in a position of authority it can be 18.89

Does New Hampshire have a “sex offender registry” type of law?

Yes.  Every state now has such a law, although the terms differ from state to state.

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. A single conviction under the indecent exposure law is not a registrable sex offense. But if you have been convicted under that law of performing a sex act in front of a child who is 12 years or younger, or you have previous convictions for indecent exposure in New Hampshire or elsewhere, you are deemed to be a sex offender.90

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

You can contact the New Hampshire Department of Public Safety, Division of State Police, Central Repository for Criminal Records, 10 Hazen Dr., Concord, NH 03305; (603) 271-2538.  They have their own form, which you must have notarized, and you must pay a $10 fee.  You may request your records in person or by mail.

What obligations are imposed on “sex offenders”?  What information is available?

A sex offender must report his or her mailing address and residential address within 30 days of release of custody or of moving to New Hampshire, and then again every year.  Some will have to do so more often.  In addition, sex offenders must inform the Department of Safety whenever they move, change their name or if they are using an alias.  All convicted offenders are registered with the Department of Safety when the Department receives information about a conviction.91

A convicted sex offender must register for a minimum of ten years and some must do so for life, especially if their crime involved children or if they have multiple convictions.92

The State Police also maintain a separate list of people convicted of certain offenses (including of the indecent exposure law where the exposure is before someone 12 or younger, or where there are multiple convictions for this or a like offense in NH or elsewhere).

The information recorded includes personal data, i.e., the name and address of the individual and the offense for which the individual was convicted (and when and where the individual was convicted).  If the information is available, then the list will also include a physical description or photo of the person, information about other convictions and a profile of the victims.

All of this information is updated and sent monthly to local law enforcement agencies, who then make the information available to “interested members of the public upon request.”93  Among other things, a person may request information about a specific named individual or about all listed individuals residing in a specific city or town.94


Police Harassment

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.95

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered—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 well-being 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 when they suspect a person has committed, is committing, or is about to commit a crime.96  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, the person cannot be arrested without probable cause to believe the person committed a crime.

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.97

According to the New Hampshire Supreme Court, such a brief detention is a permissible intrusion on a person’s liberty when the police officer can point to specific and articulable facts which, taken together with all rational inferences from those facts, warrant the intrusion.  A hunch is not enough.98

An arrest can only occur upon “probable cause” that a crime has been committed.99

What can I do if I believe I have been improperly treated by the police?

There are several places you can call to discuss your options.  One is GLAD at (800) 455-GLAD.  Another is the NH Civil Liberties Union at (603) 225-3080.

Complaints may be made to any individual police department for matters concerning its officers.  In addition, you may contact the 24-hour hotline operated by the Attorney General’s Office at (603) 271-1241.

Complaints to the New Hampshire State Police may be made to State Police Headquarters, over the telephone or in writing.  A supervisor will call back the complaining person to further process the complaint.  If the State Police act further on the complaint, the complainant will have to come into the office to make a written statement.  Contact State Police Headquarters, 10 Hazen Dr., Concord, NH 03301, (603) 271-2575.  Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

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 make attorney referrals.

People can also file complaints with the Attorney General’s Office, Criminal Division at (603) 271-3658.  They may participate in an investigation or refer a matter back to the chief of the particular police department at issue.

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