Gotham Central: Half a Life

The Eisner award-winning “Half a Life” storyline comprises Gotham Central # 6-10, and was first published in 2003. Rather than focusing on a crime, this story is mostly about the outing of Detective Renee Montoya as a lesbian and the consequences that has.

First of all, the whole story is pretty rife with blatant examples of sexual harassment. Anti-harassment laws are largely blind—in text if not in implementation—as to gender and orientation, and though men don’t generally make many harassment claims and most sexual harassment claims are heterosexual in nature, any intimidation, bullying, coercion, or other acts which create a hostile work environment in any way related to sexuality can generally serve as the basis for a sexual harassment suit in most jurisdictions. Unfortunately, this kind of thing is reportedly pretty common in many work environments, especially police departments, so it’s pretty realistic that the people picking on Montoya could get away with it.

But as to the outing itself… that’s not necessarily illegal. It’s certainly not defamation—it’s true, after all—and there are no laws against publicizing someone’s sexual orientation. It is, however, almost certainly grounds for an invasion of privacy lawsuit, specifically one based on the public disclosure of private facts. This is a recognized tort, but there isn’t all that much precedent on the specific subject of the revelation of another’s sexual orientation without their consent. The case most on point is Sipple v. Chronicle Pub. Co., 154 Cal. App. 3d 1040 (Cal. Ct. App. 1984), in which a plaintiff sued a newspaper for revealing his homosexuality. The court ruled for the paper, not because there wasn’t a claim to be made in principle, but because the plaintiff was already “out,” so there couldn’t be any damages. Publication of true, non-private facts isn’t grounds for a lawsuit. But the implication is that if the plaintiff hadn’t been “out,” things might have gone differently.

Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir. 2000) is a more recent case that dealt with involuntary outing by (rather than of) a police officer. Because the defendant was a police officer, the case was a § 1983 suit for a violation of civil rights rather than a typical tort lawsuit, but the court noted that “It is difficult to imagine a more private matter than one’s sexuality … The Supreme Court … and our court have clearly spoken that matters of personal intimacy are safeguarded against unwarranted disclosure.”  Sterling, 232 F.3d at 196.  The Supreme Court’s later decision in Lawrence v. Texas supports that view.

So Montoya could potentially sue the person who outed her. . . except that the person happens to be Two-Face, making service kind of interesting and the likelihood of collection just about zero. Which is probably why there tends not to be much in the way of lawsuits related to outing. Most people who are outed involuntarily don’t have that happen via newspaper, it happens via word-of-mouth or other interpersonal means. Which means there aren’t big corporate pockets available to satisfy a judgment, just individuals. Not really worth suing if there’s no money to be had.

That’s really about all we’ve got this time around. We’ll be coming back to Gotham Central in future posts.

17 Responses to Gotham Central: Half a Life

  1. acts which create a hostile work environment in any way related to sexuality can generally serve as the basis for a sexual harassment suit in most jurisdictions.

    It has to be related to sex, not to sexuality. Google “equal opportunity harasser”…

    • In the 9th Circuit at least it appears that even an “equal opportunity harasser” can still be found liable for sexual harassment if the harassment affected men and women differently. EEOC v. National Educ. Ass’n, Alaska, 422 F. 3d 840 (9th Cir. 2005) (“We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees.”).

      Anyway, I haven’t read this series, but the impression I got from the post was that Montoya was being harassed because of her sexual orientation, which would definitely create a hostile work environment and qualify as sexual harassment, since it was targeted at a woman.

  2. With Two-Face, I’d say the likelihood of collection would end up 50/50.

  3. Presumably Two-Face would be able to mount a reasonable defense anyway… by the way, was he ever officially disbarred as Harvey Dent?

  4. I don’t recall that there’s a statement in the comics that he was disbarred, but it’s not unreasonable to assume that the law society of the jurisdiction did so one of the times he failed on reforming, if not earlier. (Because you have to assume he could reform or that the first one was a crime of passion, or something…but long about the second time he reforms, it’s pretty clear that he should not be allowed to practice law.)

    Though there’s a lovely story possible there, where he practices law in some jurisdiction he was legal for and didn’t often frequent so he’s still a lawyer there…and he lets the coin decide which cases to take. (The fact that his client is the Joker just makes it interesting.) You guys feel up to writing it? The law would be up to snuff….

    • I had thought that it was common for lawyers to be disbarred if they were convicted of committing a felony.

      • John McMullen

        Could be. It is in Canada, where I live, but I didn’t want to make assumptions. (I’m sure I made dozens of others in the process, but I stayed away from that one.)

      • Has Two-Face been convicted of a felony? He’s usually presented as a resident of Arkham, not Stonegate.

      • It’s not clear what the legal status of residents of Arkham are. Since so many of them probably aren’t legally insane, it’s likely that many of them were found “guilty but mentally ill” and are housed at Arkham not because they are legally insane (and thus not guilty) but because they need mental treatment unavailable at Stonegate / Blackgate.

      • James Pollock

        If I were Two-Face’s defense attorney (a big if, since not only am I not licensed in Gotham State, I’m not licensed anywhere else, either, and I didn’t even TAKE criminal law. Plus, I haven’t reviewed the last 20 to 25 years of his case files, either), I would think he’s a textbook case of an irrestible compulsion. His compulsion is so obvious that Batman uses it to catch him, time after time.

      • That would be a good argument if irresistible impulse were the standard in Gotham, but it’s very much a minority position.

        The somewhat more common substantial capacity test might work too. Although Two Face can appreciate the criminality of his conduct, it’s arguable that “as a result of mental disease or defect he lacks substantial capacity … to conform his conduct to the requirements of the law.” That is, he knows that obeying the coin is wrong, but he lacks the capacity to do otherwise. This is suggested in stories in which Two Face cannot make decisions without the coin and will obey it even to his own detriment.

        Under the M’Naghten test, though, he fails both options, since he knows the nature and quality of his acts and he knows that what he’s doing is wrong.

      • I’m not at all sure that Dent “knows what he’s doing is wrong”, in that in his mind, it is the coin that decides whether or not something wrong is to be done or not.

        Of course, we may not be talking about the same character, given the number of retcons Two-Face has had. In the original telling, he wasn’t insane (legally or otherwise) until he was attacked; later versions have him bipolar, schizophrenic, and paranoid even before the attack (and I don’t like that version of Dent/Two-Face.

  5. After watching a crossover review from Atop The Fourth Wall* about an unaired pilot episode for the never created Wonder Woman show I notice that there are quite a few possible points for this site as well as some that the site has already gone over. Of course it might be difficult to obtain as it was never aired.

    *Which you may not know of, it reviews comic books.

    • That pilot went nowhere fast, but they did salvage the suit, and used it in an episode of “Harry’s Law”. The character was a woman abused by her husband, who took up avenging abused women by beating the (stuff) out of their abusers. The show usually has as much legal accuracy as, well, comic books, but the final outcome was probably about right… she took the plea deal and was sentenced to treatment for her as yet unresolved rage issues.

    • If we’re talking unaired shows, there’s the one for The 17th Precinct, about a cop precinct in a place where there is magic. Haven’t seen it myself, but that’s right in the sights of this blog too.

      • The only legal issue of note though in 17th Precint is the extreme latitude in sentencing involved in typically using curses to punish wrongdoers instead of imprisonment.

      • If TV shows are fair game, might one suggest Due South for future attention? With its international premise of an RCMP officer stationed as law-enforcement liaison support staff at the Canadian consulate in Chicago who winds up an unofficial consulting detective to the local police, it must have a number of episodes of interest to this sort of weblog.

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