A Department of Homeland Security officer charged with battering a Chinese tourist contends the government is prosecuting him because he is gay and had filed a discrimination complaint. Officer Robert Rhodes is asking a federal judge to dismiss the charges on grounds of selective prosecution. "There is a question as to whether or not the Department of Homeland Security is attempting to retaliate for Robert Rhodes's [Equal Employment Opportunity Commission] filing," said attorney Steven Cohen, who made the allegations in pretrial filings.
Cohen said Rhodes, 43, was one of several Customs and Border Protection officers involved in subduing Zhao Yan at the U.S.-Canadian border July 21 but that he alone was charged with violating her civil rights by causing bodily harm. He faces up to 10 years in prison if convicted. Among the officers present, Rhodes was the only one who was openly gay and the only one who had a complaint pending that claimed discrimination based on sexual orientation, according to Cohen.
Prosecutors have opposed the motion to dismiss. "I only became aware of the defendant's potential sexual orientation after the defendant's arrest and appearance on the complaint--by virtue of information supplied to me by defense counsel," Assistant U.S. Attorney Martin Littlefield, who is overseeing the prosecution, wrote in an affidavit. Littlefield said that only the facts and circumstances outlined in the criminal complaint were considered in charging Rhodes following the altercation at the Rainbow Bridge linking Niagara Falls, N.Y., and Niagara Falls, Canada.
According to witness accounts, Rhodes sprayed Zhao with pepper spray, threw her against a wall, kneed her in the head as she knelt on the ground, and struck her head on the ground while holding her hair. Rhodes said that Zhao and two other women ran when asked to come into the inspection station after officers confiscated marijuana from another pedestrian. He said he sprayed her with pepper spray as she swung her arms at him after he grabbed her, and that he was scratched in the process. Zhao this week announced her intention to sue DHS for $10 million.
In his discrimination complaint last August, Rhodes claimed that after revealing his sexual orientation he was regularly harassed by his supervisors. In May 2003, he said, he was told "management was looking for any excuse to write me up." Cohen said the EEOC complaint was resolved in the government's favor shortly after Rhodes's arrest.