During National Pride Month, South Dakota Schedules Execution in Case Tainted by Anti-Gay Bias

In the midst of National Pride Month com­mem­o­rat­ing the 50^th anniver­sary of the Stonewall Riots and the birth of the mod­ern LGBTQ rights move­ment, South Dakota has issued a death war­rant seek­ing to exe­cute a gay man whose death sen­tence was taint­ed by anti-gay bias. Charles Rhines (pic­tured) was sen­tenced to death by a jury that, accord­ing to juror affi­davits, was influ­enced by big­ot­ed stereo­types in reach­ing its deci­sion. On June 25, 2019, in response to a motion filed by state pros­e­cu­tors, Pennington County cir­cuit court Judge Robert A. Mandel issued an order sched­ul­ing Rhines’ exe­cu­tion for the week of November 3 – 9, 2019.

Rhines’ sex­u­al ori­en­ta­tion became an issue in his tri­al after pros­e­cu­tion wit­ness­es tes­ti­fied that Rhines was gay. According to the affi­davits, that tes­ti­mo­ny pro­voked ​“lots of dis­cus­sion of homo­sex­u­al­i­ty” dur­ing jury delib­er­a­tions. One juror said “[t]here was a lot of dis­gust. … There were lots of folks who were like, ​‘Ew, I can’t believe that.’” In a 2016 sworn state­ment, juror Frances Cersosimo report­ed that anoth­er juror had said ​“If he’s gay, we’d be send­ing him where he wants to go” by sen­tenc­ing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn state­ment, ​“We also knew he was a homo­sex­u­al and thought he shouldn’t be able to spend his life with men in prison.” 

Following a 2017 U.S. Supreme Court deci­sion that defen­dants could use state­ments by jurors to show that racial stereo­types or ani­mus had denied them an impar­tial jury, Rhines’ lawyers asked the Court to extend that rul­ing to include juror bias based upon a defendant’s sex­u­al ori­en­ta­tion. In April 2019, the Court declined to review his case. Rhines’ attor­ney, assis­tant fed­er­al defend­er Shawn Nolan, said at the time, ​“As Chief Justice Roberts wrote in an ear­li­er case, ‘[o]ur law pun­ish­es peo­ple for what they do, not who they are.’ New evi­dence – which has nev­er been heard by any court – shows that some of the jurors who sen­tenced Mr. Rhines to death did so because of who he was, not for what he did.” 

Rhines’ case high­lights con­cerns about the per­sis­tence of bias against LGBTQ peo­ple through­out the U.S. crim­i­nal jus­tice sys­tem. A 2009 studyof mock juror ques­tion­naires found that near­ly half (45%) of respon­dents believed that being gay ​“is not an accept­able lifestyle.” A 2011 study in the jour­nal Pediatrics found that non­hetero­sex­u­al youth are dis­pro­por­tion­ate­ly pun­ished in school and the jus­tice sys­tem. Researchers from UCLA School of Law’s Williams Institute, a think tank ded­i­cat­ed to research on sex­u­al ori­en­ta­tion and gen­der iden­ti­ty in law and pub­lic pol­i­cy, found that les­bian, gay, or bisex­u­al (LGB) peo­ple ​“were three times more like­ly than straight peo­ple to be held in pris­ons and jails” and face harsh­er sen­tences and prison con­di­tions. LGB peo­ple were also more like­ly to be sex­u­al­ly vic­tim­ized while in cus­tody, and more like­ly to be sub­ject­ed to solitary confinement.

Death sen­tences taint­ed by anti-gay bias and stereo­types are not uncom­mon in the United States. In Calvin Burdine​’s case — which gained noto­ri­ety because his attor­ney slept through major por­tions of the tri­al — the pros­e­cu­tor told the jury that ​“send­ing a homo­sex­u­al to the pen­i­ten­tiary cer­tain­ly isn’t a very bad pun­ish­ment for a homo­sex­u­al.” In a post-tri­al hear­ing, Burdine’s lawyer used anti-gay slurs to refer to Burdine and oth­er gay men. The book Queer (In)Justice, which explores anti-LGBT bias through­out the crim­i­nal jus­tice sys­tem, says, ​“In cap­i­tal cas­es a pros­e­cu­tor must suc­cess­ful­ly under­take what should be a moral­ly dif­fi­cult, eth­i­cal­ly com­plex task of con­vinc­ing a jury or judge to kill anoth­er human being. To suc­ceed, the pros­e­cu­tion must demo­nize, dehu­man­ize and ​‘oth­er’ the defen­dant … the process of dehu­man­iza­tion required to obtain a death sen­tence is eas­i­er when the defen­dant is of a dif­fer­ent race, class, sex­u­al ori­en­ta­tion and/​or gen­der iden­ti­ty than the jurors or judge.” One exam­ple it offers is the tri­al of Wanda Jean Allen, who was exe­cut­ed in 2001 for the mur­der of her les­bian part­ner. Prosecutors empha­sized Allen’s gen­der non-con­for­mi­ty, call­ing her the ​“man” who ​“wore the pants in the fam­i­ly.” Judge James F. Lane, who heard Allen’s appeal, wrote, ​“I find no prop­er pur­pose for this evi­dence, and believe its only pur­pose was to present the defen­dant as less sym­pa­thet­ic to the jury than the victim.”