Just a stone's throw from the campus of the university in Kingston, Ontario, where I teach, is a small park. Hugging a rocky stretch of Lake Ontario shoreline, Macdonald Park, named after Canada's first prime minister, is better known by locals as “Pervert Park.” Since at least World War II, Pervert Park has been the primary cruising ground in Kingston for men searching for sex with other men, a meeting place for a mix of mostly working-class men, men stationed at the nearby military base, and the occasional intrepid university student. For women, the park's name references a different kind of pervert and signals the potential danger of walking alone in the park at night. Two of the park's main features are the Newlands Pavilion, a bandstand built in 1896, and the Richardson bathhouse, which is really a public washroom and changing facility, and which, when it first opened in 1919, boasted lockers, hot-water showers, and a list of “rules that would be enforced to maintain decorum in the bathing house.”Footnote 1 A paved path, punctuated by park benches, connects the pavilion and bathhouse, which, after dark, conveniently becomes an oval track for men cruising around and sometimes having sex behind the pavilion and bathhouse.
Figure 1. Richardson bathhouse at night, Macdonald Park, Kingston, Ontario. Uncredited photo uploaded to Squirt, an online cruising site. The listing warns: “Cops sometimes check up on the area. Use common sense as it is a public area.” (https://www.squirt.org/cruising/cruising_details.asp, accessed October 7, 2021)
One hot, summer night, more than 30 years ago, I remember walking after midnight through Pervert Park. A dozen or so men were in the park that night, a few sitting alone on benches, the others in pairs, chatting. As I approached the east exit of the park, a police patrol car pulled into the parking lot directly ahead of me and turned on its lights, flooding the park with bright, white light. Turning away from the blinding light, I looked over my shoulder and saw men scatter, leaving the park by its other exits. But why, I wondered. No one, so far as I could see, was engaged in any indecorous behavior. It's not illegal to sit or socialize in a park at night. And so, a few of us, located at different points in the park, faced into the police lights and stood our ground, strangers in an unpremeditated solidarity. It was unnerving; the police could see us but we could not see them. The standoff lasted only a few minutes. The police turned off their lights and drove away. It would only be later that I learned that the police practice of floodlighting the park to flush out the queers had a long history.
Kingston police were slackers when compared to their United States counterparts in vice during the mid-twentieth century who, sometimes selected on the basis of their good looks, were trained to wear tennis shoes and tight pants to entice queer men into sexual solicitation in “pervert parks” across the nation. These police decoys, along with the police who worked with state liquor authorities to harass gay men and women in bars, and the police who peeped on men in public toilets, are the subject of Anna Lvovsky's deeply researched, conceptually innovative, and elegantly written book Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall.Footnote 2
The police have always figured in queer historiography, of course. How could it be otherwise? But early gay/lesbian historians, in a laudable effort to place queer subjects at the center of their own histories, tended to push the police to one side. Paradoxically, these same historians often relied heavily on police and court records, but these documents were mined for what they could tell us about queer identity and community formation, not for what they revealed about the institutions that produced them: the police and the courts. In this way, the police gave historians the slip, escaping critical scrutiny. That is, until Vice Patrol.
Lvovsky's book does not appear entirely out of historiographical thin air. Over 25 years ago, I suggested the need to reconceptualize the historical relationship between policing and same-sex subcultures through a process I dubbed “the dialectics of discovery.” I argued that the practices of police surveillance and the production of police statistical knowledge were key preconditions for the public emergence of “homosexuality.”Footnote 3 But back in 1994, I could scarcely imagine the conceptual sophistication that Lvovsky now brings to the topic. In more recent years, queer historians have evinced a greater interest in tackling the police. However, as late as 2016, Timothy Stewart-Winter could still note that the rise and decline of anti-gay policing “has been almost totally neglected by historians.”Footnote 4
In filling this historiographical gap, Vice Patrol takes readers into “the daily realities of urban policing—the types of interactions that most commonly defined gay individuals’ encounters with state power.”Footnote 5 With its street-level view of gay people's everyday run-ins with the police and courts, Vice Patrol reads less like legal history—Lvovsky is not overly interested in the formulation of laws and legal policy—and more like a queer social history of the juridical apparatus of the local state, with a discerning analysis of variation across its different branches (liquor licensing boards, police, vice patrol squads, prosecutors, and judges).Footnote 6 That said, Vice Patrol has everything to do with the law: with what Lvovsky terms the “epistemology of law enforcement.”Footnote 7 Consider her fascinating discussion of “ethnographic policing.” Lvovsky argues that policing “did not merely constrain queer communities but also produced novel and even accurate knowledge about them.”Footnote 8 Vice-squad decoys in parks and washrooms picked up remarkably precise knowledge about gay subcultures, adapting their tactics to cruisers’ constantly changing subcultural codes and cues. But Lvovsky's point is not simply that the police, as would-be participant-observers, contributed to the ethnographic discovery of the gay world at mid-century. Rather, Lvovsky directs our attention to what she calls—and this is perhaps the book's signal contribution—the “epistemic divides” or “epistemic conflicts” between the police and courts (and sometimes between trial and appellate courts).Footnote 9 Lvovsky suggests that in court, police routinely downplayed their intimate knowledge of gay cruising culture in order to shield their often-dubious enticement practices from review by judges. In presenting their cases before the court, police and prosecutors counted on “the court's continuing failure to appreciate those codes,” which were, after all, developed by gay men precisely for their unintelligibility to outsiders.Footnote 10 Why explain to the court the intricacies of playing footsie under a toilet stall or finger-wiggling through a hole in its wall, whether performed by queer men or vice officers, if “judges declined to see such seemingly benign conduct as justifying judicial intervention?” Nothing to see here. As Lvovsky puts it, police and prosecutors exploited “an epistemic gap” between what police knew and what many judges apparently did not, “knowledge gaps that undercut potential checks on police tactics on the ground.”Footnote 11
The police and courts did not have a monopoly on knowledge. Men who cruised parks and tearooms also had their own forms of knowledge. In Kingston, men learned about Pervert Park from graffiti on the stall walls of Richardson bathhouse, by word of mouth, and sometimes directly from the police. One of two men cruising together in Kingston's Pervert Park during the 1960s recalled a police constable's warning, “‘You know that this park is full of perverts, don't you?’ and my friend said in all innocence, ‘Why officer, thank you for telling me, I'll be sure to keep an eye out for them!’”Footnote 12 Lvovsky is hip to this “humor in the shadow of the law.”Footnote 13 With men striking a pose of faux naïveté, claiming to the police not to know a particular park or washroom was a gay cruising ground, with cops denying in court that their surveillance and enticement practices gave them any expertise, and with judges failing to understand the queer doings of both cruisers and vice-patrol officers, do we not have here an especially dense historical illustration of what Eve Sedgwick called, in a discussion of sexual assault law, “the epistemological privilege of unknowing” and “the orchestration of ignorance” in the courts?Footnote 14
Lvovsky questions historians who see in the production of knowledge a “liberal impulse.”Footnote 15 By contrast, Lvovsky detects within liberalization a strong undercurrent of policing.Footnote 16 She writes convincingly, for instance, that the “pansy” craze of the 1930s “often remembered as a bubble of relative tolerance … left a far more complicated legacy.” “Far from simply a moment of liberal curiosity about the urban underworld,” the pansy craze provided “a direct tool of legal regulation” insofar as the knowledge gathered about “the social quirks and contours” from that period was used to create “a powerful foundation for the states’ campaigns against urban queer life.”Footnote 17 Or, for the postwar period, consider the increasing willingness of mainstream media to report on homosexuality. The fact that journalists, from the New York Times to Life and Harper's, used vice cops as their guides to the gay underworld reveals for Lvovsky “the abiding tie between even the most seemingly liberal public discussions of homosexuality and the continuing surveillance of gay life.”Footnote 18 At the same time, Lvovsky is keen to avoid reinstalling policing and the law as a monolithic machine of oppression, and so we also learn that even “outwardly conservative, often painful developments mediated the punitive impact of the law.”Footnote 19 For example, the postwar period's draconian sexual psychopath provisions “did not necessarily make homosexual offenders more vulnerable before the law.”Footnote 20 Rather, they had a “surprisingly liberal effect” as “often-progressive psychiatrists” became “advocate[s] for leniency” and “urged judges to treat gay men less punitively.”Footnote 21 So, sometimes liberal, sometimes not so much.
Other scholars do not strike such an interpretive balance when assessing the postwar period. They find in it instead the ominous historical preconditions for the present-day “war on sex.”Footnote 22 They point to the role of lewd conduct laws in the creation of the category of the modern sex offender and sex-offender registries; to the deployment of sex panics, particularly over the pedophile, in the expansion of the punitive state; and to sodomy statutes and how the move to decriminalize sex between consenting adults in private led to invidious legal distinctions and the creation of a criminal underclass of gay people.Footnote 23 Lvovsky discusses all of these developments but not to the same degree and with a different interpretive emphasis. Writing about predators and pedophiles primarily as “prototypes” or “stereotypes,” Lvovsky does not provide any detailed analyses of the actual panics over “perversion,” often involving intergenerational sex, that during this period gripped numerous cities from Miami (1954) to Boise (1955).Footnote 24 One wonders if doing so might have tipped the interpretive scales more in the direction of the punitive side of the state. On sodomy, Lvovsky sees a “frequent disconnect” between the harshness of sodomy laws on the books and judges who mitigated their severity by releasing defendants with probation, a fine, or psychiatric treatment.Footnote 25
Lvovsky reassures readers that it is not her intention to “exalt the medicalization of homosexuality in the mid-twentieth century.”Footnote 26 But what is at stake in adjudicating some aspects of the medicalization and criminalization of queer people as progressive and less punitive, as opposed to viewing psychiatric-legal power and its creation of “abnormal” and “dangerous individuals” as shifting strategies of normalization in punitive society?Footnote 27 And what accounts for these interpretive differences? I will speculate a bit about this further on. But the benefits of viewing the history of policing, the law, and gay life as the product of epistemic contestation seem clear. It supplies us with insight into why the police and the courts do what they do and, just as importantly, do not do. For example, Lvovsky demonstrates that vice squads might lay off (or step up) the arrest of men in any given month based on their knowledge of the views and mood of the judge sitting at the time. It is a simple illustration, but Lvovsky's attention to the varying institutional locations and pragmatic uses of knowledge strikes me as a more satisfactory explanatory device for patterns of policing than recourse to generalized and ahistorical notions of homophobia or anti-homosexual prejudice that too often pass as the implicit explanation for anti-gay policing in much historical writing. Another historiographical advance, arising from Lvovsky's focus on knowledge, is her argument that the law did not simply confront a pre-existing queer world brought before the bench. The practices of the law, she insists, were central to the production and circulation of knowledge—to the apprehension and, crucially, the misapprehension—of the very thing being policed.
Although Lvovsky does not make this link, I suggest that Vice Patrol is an effective demonstration of Valerie Traub's enabling concept of “sex-as-knowledge-relation” and the rewards to be reaped from “reframing the history of sexuality as an epistemological problem.”Footnote 28 Indeed, I am going to predict that Lvovsky's book is one of the first in what will come to be known as the epistemological turn within queer historical writing, ushering in a long overdue awareness among queer historians that accounting for the biases and other limitations of our sources is not the same thing as probing how those sources construct knowledge of the thing that they purport to merely represent.
If Vice Patrol's focus on epistemology, on what queer historians can know, breaks new ground, Lvovsky has less to say about how we know it; that is, about methodology. I am not referring to the book's sources, which are wide-ranging (the police training manuals and the 1964 Purple Pamphlet are gems) and employed in a fashion familiar to that of social historians. Neither am I referring to reading strategies; legal narratology or the woefully undertheorized “reading against the grain” are both mercifully absent. Rather, I'm referring to what in the emerging field of queer methods goes by the name of “queer reflexivity” and “positionality.”Footnote 29 Feminist theorists call it “standpoint.”Footnote 30 Whatever we call it, let's be clear: it is not a question of identity, of whether, for example, straight historians should do queer history. It is, however, to refuse the standpoint of “apocalyptic objectivity,” in which “historians take unusual pains to erase the elements in their work which reveal their grounding in a particular time and place, their preferences in a controversy.”Footnote 31 It is fundamentally about ethics and politics. It is the reason I started these comments by grounding myself in Pervert Park and by declaring my preferences, my commitment to resisting the sex police.Footnote 32 It is why Roger Lancaster includes in the middle of his book, Sex Panic and the Punitive State, a chapter on his own sexual experiences (including a terrifying tale of getting caught up in a teacher friend's legal case involving accusations of sex with young students), along with a searching consideration of the “ethical dilemmas and moral hazards” of “autoethnography.”Footnote 33 In a book so sensitive to the sociology of knowledge and the ethnographic tradition, the absence of self-reflexivity in Vice Patrol is curious.
One of the dangers in not positioning yourself is that it's left to others to do it for you. What, then, can we say about Lvovsky? Certainly, she is no apologist for the police. Indignation is made plain on the page: The vice squads’ anti-homosexual campaigns are “a dark chapter of American history, one that is frequently heartbreaking and appalling.” The police persecution of queer people is “painful,” and Lvovsky finds no reason “to forgive the harm caused.”Footnote 34 When it comes to the judiciary, however, Lvovsky adopts a different tone. She refers frequently to “liberal” and “progressive” judges, and one word that recurs repeatedly in discussions of them is “sympathy.”Footnote 35 Lvovsky shows, for instance, how judicial leniency often stemmed from the sympathy that some white male judges felt for the white, often married, middle-class men who appeared in their courts, in which a race- and class-based familiarity trumped whatever qualms judges may have had about queer sex. But might Lvovsky not have some sympathy of her own? According to Lvovsky, judges, who “proved quite willing to engage creatively with the law to curtail what they criticized, privately if not publicly, as unjust laws and repulsive police methods,” have gone “underappreciated.”Footnote 36 To remedy this, Lvovsky carves out for liberal judges a rather significant historical role. Without ignoring the critique of police practices by gay activists, civil libertarians, and progressive journalists in the 1960s, Lvovsky nevertheless maintains that the “roots of resistance against the vice squads’ repressive campaigns” were “built into the operation of the criminal justice system itself, rehearsed and refined a decade earlier by the judges who administered the law on the ground.”Footnote 37 Not only does such a view shift the historical basis of resistance from queer communities to the law, it also suggests—given the characterization of judges as sympathetic, underappreciated characters and their role as instigators of resistance, to the emphasis placed on the mediating function of judicial leniency, discretion, and oversight, and to the repeated references to “the legal rights and freedoms of gay individuals” —that what we have here is not just a study of liberal legalism but one undertaken from the standpoint of that same liberalism. Put differently, while Lvovsky is by no means unmindful of the limits of the law, she does believe in it.
Believing in the law is often the basis for working within it, and this brings us to what the legal activist-scholar Bernard Harcourt insists on as the necessary relationship between critique and praxis. In what Harcourt calls these “times of crisis” (and remember, when it comes to sex, we're at war), it is no longer sufficient to simply critique; we must also act.Footnote 38 For queer historians, perhaps the most obvious thing to do is to write legal briefs and appear as experts in court cases involving anti-gay discrimination.Footnote 39 But, as Harcourt argues, central to the urgent renewal of praxis is “a radical critique of law,” including “the illusion of liberal legalism,” this from someone who, as Harcourt admits, has made ample use of “liberal-legal methods.”Footnote 40 Harcourt is also a Foucault scholar—he edited Foucault's lectures on The Punitive Society—and many of those whose queer histories of policing foreground the expansion of the punitive-carceral state also draw on Foucault, for both his critique and his way of mixing militancy and theory.Footnote 41 This suggests that one way to understand the interpretive and political approaches to sex, law, and policing adopted by Lvovsky in contrast to the other scholars I've been sketching is as a difference between liberal-legalism and left-Foucauldianism.Footnote 42
For the radical critique of the law that Harcourt calls for, we can turn to someone like Dean Spade, a professor of law and critical trans studies and founder of the Sylvia Rivera Law Project, which provides free legal services to low-income people and people of color who are trans and/or gender non-conforming. Starting from the premise that “their laws will never make us safer,” Spade urges queer people to refuse “to be the new face of the purported fairness and liberalism” of the law and to reject “having its criminal codes expanded in our names.”Footnote 43 Those who adopt such a stance, one more focused on the criminalization and incarceration of queer, trans, Black, Indigenous, people of color (QTBIPoC), often link their critical work, not to aiding the state in bringing ever greater numbers of queer people into the law's embrace, but to helping queers escape its grip by doing “people's law,” police misconduct cases, and dismantling structural injustice in law enforcement.Footnote 44
One doesn't have to be a lawyer to link critique and praxis. It might be as simple as including a list of activist resources at the end of one's book.Footnote 45 For my part, I have negotiated the critique/praxis divide over the years by publishing the results of my historical research on the police in queer community-based and non-academic publications; demonstrating against and reporting for the queer press on police action against park cruisers in the present; writing about the political challenges posed by public sex; pushing police departments to release their historical records; and writing op-eds for the mainstream press on LGBTQ legal issues, such as the Canadian federal government's expungement legislation, part of the apology for its history of anti-gay discrimination.Footnote 46 I have no doubt that Lvovsky has her own ways of handling the critique/praxis challenge, but if so, they do not figure in Vice Patrol, representing a missed opportunity to think through the link between historical critique and political practice.
In the last few pages of her epilogue, Lvovsky does touch on the relevance of her historical research for the policing of marginalized communities today. Lvovsky's key point about understanding policing and the law as a “deeply contested space,” as malleable rather than monolithic, takes us a good distance, for what is malleable can be remade.Footnote 47 But it remains unclear how a focus on epistemic gaps between the police and the law, for all its historical explanatory power, can be harnessed by QTBIPoC trying to resist the over-policing of their communities or by those of us trying to push back against the ongoing policing of our sexual spaces.Footnote 48 The Foucauldian in me tells me we should seize on Lvovsky's epistemic gaps as the strategic cracks or fissures in the edifice of power/knowledge that is sex, law, and policing. But this remains too abstract. And so, I extend an invitation: to all those, across different identities and diverse communities,Footnote 49 interested in fleshing out the activist implications of the historico-epistemological approach to the law and anti-queer policing that Lvovsky so impressively and crucially provides us, meet me in Pervert Park.
