Inequality in Texas

By the time you read or receive this I may already be in prison. But despite that fact I feel it necessary to tell my story in the hopes that someone somewhere will recognize the injustice and the plight of a gay man in Texas. I don’t want to come across as bitter because I am not. I’m not even furious. But, I do have some righteous anger and I feel it is completely warranted.

I want to address the current state of our justice system and why I am a victim of judicial discrimination. The following pages will reveal how I have been tarred and feathered by a homophobic district attorney and judge. I will show you how a gay man in Texas cannot get the same treatment as a straight man and more shockingly, you will read how the same judge in a the space of two court sessions sent a gay man to prison for having met with a 16 year old consensual minor and how he let another man who had two charges of indecency with a minor, both 11 year old girls, only be sentenced to 6 months in jail and 10 years probation.

The law of the United States promises equal protection does it not? But in Texas the law is still nothing but the good ole boys club doing whatever they want and ruining the lives of people who do not deserve it. Surely a man can make a mistake and have an error in judgment in his lifetime, but if that man is willing to acknowledge that mistake and atone for it, surely that should be taken into consideration considering the facts in the case. But in this case, this judge chose to go against precedent and send a gay man to prison for 8 years and days later give a straight man 6 months in jail is certainly something that should be questioned and one should wonder if there is still some deep sense of homophobia at play.

Now I want to tell you my story because I feel it needs to be told. And although my words may never change the outcome of this case, my prayer is that someone somewhere will be outraged by the actions of this renegade justice system and shed some national exposure on how a gay mans civil liberties are not equal in Jefferson County, TX. Hopefully it will prevent another person from suffering the same witch-hunt that has led to the lynch mob justice that I experienced. I am hoping that somewhere out there is a Harvey Milk who will draw attention to my plight and work to expose injustice.

In August 2007 I was online browsing through MySpace profiles for the Beaumont area. I was bored and in all honesty I was looking for someone to hook up with. I don’t deny that. I had an account under a different name that I used to talk on and meet other gay people on because I was not out of the closet in this area and I was a store manager for a major retailer and vice president of a local chamber of commerce. Due to my position I chose to keep my orientation secret. I met a young man online whose profile had his age listed as 18. Naturally I assumed that was his age. We had a conversation and the tone was sexual, more so on my part because I thought was attractive, and in all honesty I wanted to meet up with him. He would get on his webcam when no one was around and expose himself to me and talk sexually to me. However, during a phone conversation separate from the online chat he revealed he was not 18, and shortly after his profile changed and his age on the profile was now listed as 16. We had another phone conversation and I told him we could talk and be friends but because he was not legal age yet that I could not meet him. During one our phone conversations he revealed his attraction to a local African American boy and wanted me to try and “get him” to meet up with him and have sexual relations. The African American was of legal age and he had no interest in meeting him. During another phone conversation he revealed his struggle with the feelings of being gay and that he was having some guilt over it and thought that maybe we should not talk anymore. I told him that was perfectly fine and we ended our conversation and went our separate ways.

A few months pass and I was in Houston on a business trip in mid February of 2008 when the young man once again contacted me in my hotel room on my yahoo messenger. He said he had been missing me and thinking a lot about me. Well, that was extremely flattering to me. After all, I was 10 hours from my hometown and often times I was lonely. And it felt good for someone younger to seem to “want” me. In my weakness I gave in to that flattery and we began our conversations again, this time with the roles reversed and the sexual intensity and persuasion coming from him. He told me he was 17 now and able to meet me. So one night I drove to his house where he told me he lived and gave me instructions on where to park. He got in my car and told me that he knew a place and showed me where to go. We ended up at the dead end of a street that he said was private as if he had done this sort of thing before. After all, he had revealed to me that he had done things at slumber parties with other boys.

I’m going to pause here and interject a couple of things. You’re probably thinking how stupid it was for me to meet someone 20 years my junior and in a public place on a public street to boot. I completely agree with you and acknowledge and accept my own stupidity. But, that’s not the focus of writing this and I want to make sure that the focus is not lost on the real issue here, that issue being equal justice for all. Because it has not been served.

During our initial meeting there was conversation, we both h were naked in the back seat of my car where HE suggested we sit. We kissed and masturbated and he informed me up front he was not ready for anything more with me yet so we did not proceed any further.

After our first meeting he told me that he had an awesome time and would like to meet again. One day during the time between our first and last meeting he was on his yahoo messenger and asked me if I would like to see a new picture of him. I said sure. Little did I know that he was going to send me a nude picture of himself standing in front of the mirror. A picture he took with his phone and which shows his full face and genitalia, however not erect. I was surprised when I saw that it was a nude photo, and honestly, I liked it. Thinking that he was 17, I just kept the photo. The current court discovery also shows that he took the photo on his cell phone. However, none of this was ever taken into consideration by the judge. In fact, cases were being filed the same week in our nation against 14-year-old boys who had sent nude pictures of themselves to their girlfriends and it was going to require them to register as sex offenders. But nothing was ever done to this young man for the same type of offense. But I’m getting ahead of myself here. Let me continue.

He contacted me again one night at work and wanted to get together. I was closing my store, was very tired and not really in the mood to meet up. He kept pressuring for me to come and also asked me for money. He said he was going to a youth conference of some sort and needed fifty dollars. My text messages, if not erased by the district attorney’s office, would clearly reflect this. The phone records entered into evidence and provided as an exhibit also show that HE contacted me that night for the meeting, and that HE also CALLED me first.

I told him that I did not have the money because I did not get paid until Thursday, but that I would gladly help him out later in the week. He kept insisting that he needed the money that night and was begging for me to come. Yet none of this is taken into consideration by the judge. The witch-hunt continues.

I finally told him that I just did NOT have the money and he said, “Forget the money, I just want to F#CK.” He wanted to go further than we did the first time.

I don’t think I brought this up previously, but it’s a major fact to know that that the young man is/was extremely afraid of his parents, especially his stepfather.

So, back to the night when it all went to hell. When my six-digit salary disappeared and I became a pariah of the corrupt Texas judicial system and a victim of a homophobic district attorney’s office and judge.

We were parked in the same spot as before and in the back seat of my car, naked, kissing and preparing to go farther than we did the last time. The young man was very aggressive in his action and speech and I was enjoying it. He said he wanted me to F*&K him.” I had brought a condom, lube, and a towel.

As he was preparing and I was getting ready he we may have been there ten minutes at this point and before I could continue on I saw some car lights approaching. That’s when I jumped into the front seat and started getting dressed and told him to do the same. The young man said to just drive off but I already knew it was law officers and the worst thing I could do was to drive off.

A young officer approached my car and asked me what I was doing and I cannot even recall what I said. He asked me to get out of the car so I did. I gave him my name, my info, and was completely cooperative. The other officer opened the back door of my car where he saw the young man still naked. He had him get dressed and they put us both in cuffs. At this point I was not too concerned about anything because I was still under the impression he was 17 and I even told him when the officers were approaching to make sure they knew that was indeed that age, a statement which has been twisted by this young man and the district attorney’s office to make it sound like I was telling him to lie about his age.

The officer took him from the car and asked him his name and birthday. He gave them the info and the birth date he gave indicted he was 17. Again, that is consent age in Texas and I was not too concerned. Surely there would be a fine I thought but I never dreamed that such a hatred of homosexuals would lead to the end result that it has come to.

The officer who took his info was also given an incorrect phone number as the young man was begging him not to tell his father or something to that effect. Clearly he was upset and afraid and I told him it was going to be ok, that he had done nothing wrong. Little did I know that was 16. The officer finally got aggressive with him and eventually got the correct phone number out of him. The officer next to me said something like “We know what ya’ll were doing in there!” Well, fine, if you knew, then you know there was nothing serious occurring yet when you drove up I wanted to tell him. Then he dropped this statement, which resonates with me to this day. “Well you know homosexuality is still a crime in the state of Texas.” Really? Why is such a statement like that even warranted? I was not under arrest and yet he was making these accusations of knowing what I was doing and letting me know that homosexuality was a crime. Was he accusing me of being a homosexual? I wasn’t under arrest, nor was I on trial. I’d certainly like to have the video from his car that night and play that statement for the nation to hear. I knew when that statement was made nothing was ever going to be fair. And I was right. It turned into a witch-hunt, and a perversion of justice and a litany of unfairness that should have been abandoned years ago. But then I realized, this was a state where good ole boys rule and frontier justice was only yesterday.

The other officer took the young man away and then soon my officer was radioed back and he then placed me under arrest, and said that the young man was 16 and a child in the eyes of Texas. I was taken to the county jail where I was up all night with very little sleep.

The next morning I was driven to the courthouse and two detectives met with me. From the beginning I cooperated with them. I asked for an attorney and one of the detectives said, “If we get you an attorney all deals are off!” I perceived that as a threat and it scared me. How should a statement like that ever be legal? I felt the due process of my rights was violated in that statement as well. Putting fear into someone to get a statement under duress is simply not right. I wonder if the state of Texas is creating its own law as it goes. Where is the respect for civil rights and to try to talk to a man who had not even been allowed to rest and think clearly is a shame and a further indication that their goal from the beginning was not justice, but to service their own hatred of homosexuals and I was their primary target. The lack of sleep treatment was also employed at Gitmo might I remind you and that amounted to nothing more than torture to get statements.

I consented to having my home searched because I believed the evidence showing where he initiated the contact that night and the fact that he had sent me a picture from his own phone would show that although I was the first person to contact him in 2007, I never did so again after we only TALKED about sexual things. That his persistence in meeting and the phone records showing that HE was the one who had reinitiated the contact would play in my favor. But, this judge never looked at ANY of that. He has lofty goals I guess of being a “tough” judge and “protecting” the children. Yet this same judge in his very next court did not serve justice to a REAL child molester. WHERE is there justice in that sentence? Those young girls did not ASK to be molested. They were 11 years old! I am certainly appalled by that and I don’t see how anyone could ever hurt a child.

It was clear to me that nothing was going to be fair in the prosecution of this case. That indeed I was going to be the victim of homophobia and discrimination. This young man’s fear of his family and their denial that he could ever be gay has caused him to misrepresent the truth and he has painted himself to be a victim when there are clear facts that show he is NOT.

My home was searched, my computers taken along with other equipment and I firmly believed they were hoping to find all kinds of child porn on my computer so they could brand me a pedophile and monster and predator. Yet they could not. There was NO child porn there, nothing for them to charge me with.

I lost my job the day after I bonded out. A six-figure income in a position I loved. A position that allowed me to give back to my community and to serve others. I have always been and will always be a giver and that part of me will never change. I’m great at what I do and I have never abused the authorities of my position to do anything wrong. I took another job and began a second successful career making very good money. It was less, but still very good. I moved back home to Oklahoma and was starting over. I never dreamed that such abuse of power was going to occur in this case because of homophobia. Another recent case in the area involved a female schoolteacher who had relations with a 14-year-old girl netted her a deferred adjudication. Another man in his 30’s was given probation for having sex with a 15-year-old girl he had gotten pregnant. All these people walking with probation. BUT, if it’s male on male, it’s different. But why? Why does a gay man go to prison while everyone else walks? Why is it so repulsive in the court system? I believe there needs to be a new set of standards issued by the federal government. One national consent age and a judge that should have to explain himself if he is going to fly in the face of precedent. If the 30 year old and the 15 year old was a probation case, why were the 37 year old and the consenting 16 year old that lied about his age a prison case? One bad mistake does not make a man evil. Especially if it was unintentional. It doesn’t make him a predator. A predator is someone who constantly seeks to harm and corrupt. I certainly am not a predator. I believed I was talking to a young man of legal age. But our district attorney in this case is so hell bent on anything but justice.

After speaking with my attorneys and given prior outcomes we thought it would be better to plead guilty and let the judge determine the sentence. One never knows how a jury is going to react and in hindsight I realize I made a bad choice and should have gone to trial with this. Surely I could not have come out any worse considering the damning evidence against him as well. But believing I was doing the right thing I plead guilty with a heavy heart to things that I know are not true and was hoping that this judge would have the good sense to be an honorable judge and do what’s right and fair and consistent with other cases. It’s never been about guilt. It’s been about what is fair. And this is not a prison case.

The judge ordered a PSI (pre sentencing investigation) and I was to take a psychological evaluation. During that evaluation the results showed that I was NOT attracted to children nor was I into sexual violence. I did admit to having sex with people that I had met at bars or online, a total of 20 over a 10 year period. An average of 2 per year. It’s amazing how this was frowned upon because it was a male meeting a male but tell me why is it not frowned upon when heterosexual males go out and meet women in bars or online and have sex? And probably a lot more than what I’ve done. But sex is going to be a natural occurrence and because men and women look for it does not mean it’s wrong. It’s NATURAL.

I was pleased with the outcome of my exam and just that I was on the way to probation. Why wouldn’t I? I felt that I was going to be treated fairly and the same as everyone else before. But in the meantime this young man had turned 17 and should have been allowed to speak for himself. Yet the parents, in their refusal to accept him as gay pushed this case as far as they could push. As if by putting me away would magically make him not gay anymore. They haven’t even considered he played a major part in all of this. How could a parent who truly loves their child be willing to put them through a possible trial knowing there was going to be disturbing facts about that child come out? In my mind it’s because they don’t truly support him. They are angry at what happened, but instead of helping him to come to terms with who he is, they seek out who they think is the violator and never consider his needs. They will try to “force” him to be straight. But he’s not. His life will be full of unhappiness because he can’t be who he truly is. He will never find true love if he’s not allowed to love whoever he chooses and ultimately his problems will become worse later in his life because the ones who claim to love him are homophobic. I think it is a shame for any parent to live their life through their children and not let them have their own life, make their own choices and be their own person.

So on April 17^th, 2009 I appeared before this judge for the last time. My mother and father were in the audience and optimistic that I would be treated fairly. But to my great shock and to the shock of so many others who have decried and denounced this justice system, the judge allowed the pressure of discriminatory justice and homophobia, and lynch mob justice cause him to make a decision that would put me in prison for 8 years. An extremely harsh penalty that is completely out of bounds when considering precedent. Completely inappropriate to the crime and a shame to justice. I never once in this case admitted to those lies being perpetuated against me. Justice has not been served. He has taken a good man with a good heart, a career, and attempted to strip him of his dignity because he is GAY! But to this I defy him. Because I will NEVER be ashamed of who I am and I will NEVER lose my dignity! I am a confident man. I am a fighter. And I will kick and scream and holler and pursue justice for others because the world needs to know what is going on in TEXAS! Be warned gay men! Texas is still the home of outlaw justice. Still the home of frontier lynching and lies and distortion of the actual facts. And if the facts don’t fit what the prosecution WANTS, then they are tossed aside and ignored.

This letter, this article I am writing is going out all over the world. To TV networks, to newspapers, magazines, civil rights organizations, and to activists. There will be those who think I got what I deserved, but I believe the majority of our nation is smart enough to know when justice is lopsided whether they agree with homosexuality or not. One thing for certain, I have and always will be a Christian. I have a firm and strong faith in GOD. I have prayed that his will be done in this case and so I accept this as HIS will for me now. And maybe there is going to be some good come out of this for the future. I refuse to be beaten or beaten down. In fact, I am quite STIRRED! And now I will use my ability to write to combat and fight for equal justice for gay men and women everywhere. We must make sure judges like this are not elected to serve any longer. WE have to say NO to inequality and make the changes on the bench that we need in order to achieve true consistency. I hope our president hears of this injustice and puts his foot down against further hatred. The idea that our justice system can do anything to anyone at anytime is no idea at all. It’s a FACT!

Ben Whaley

10001 Goad

Marlow, OK 73055

580-658-3978 (Parents Home Number if you need any more details)or email busdriver2@simplynet.net

I received this letter from Rev. Dwayne at the Resurrection Church in Houston, TX.

Dear Ben,

I have received your story. Yes, it is another example of the injustice perpetrated in Texas and elsewhere against gays. Your willingness to tell your story, however, will encourage others to have the courage to speak out and take the daily steps of truth telling to expose the oppressors.

There are many in our congregation who are working on a variety of justice issues. We have a long ways to go, yet we will not give up.

Sincerely,

Rev. Dwayne Johnson

http://www.resurrectionmcc.org

Also received this letter from Mary at Texas Voices.

May God lead you to speak out against this injustice. Thanks for sharing your story. We have heard hundreds that are extremely disturbing and we are working hard for change.

Mary

http://www.txvoices.com/