Last edited: February 14, 2005

State’s Highest Court Refuses to Throw Out Anti-Sodomy Laws

Associated Press, February 21, 2002

BOSTON—The state’s highest court has refused to throw out two anti-sodomy laws that gay rights groups say can be used to intimidate couples engaged in consensual sex.

The anti-sodomy laws, which date to colonial times, establish penalties of up to 20 years for the "abominable and detestable crime against nature" interpreted as anal intercourse and 5 years for any "unnatural and lascivious act," interpreted to mean oral sex. Gay activists challenged the laws as unconstitutional, arguing that they violate the right to privacy, equal protection, freedom of expression and the prohibition against cruel and unusual punishment. But the court declined to decide the constitutionality of the laws, saying there was no active case to base their ruling on.

"Because there is no actual controversy, we remand the case to the county court for dismissal," Justice Roderick L. Ireland wrote. The court did limit how the laws could be used, noting that prosecutors for the Attorney General’s office and district attorneys had agreed not to prosecute anyone under the laws unless the sexual acts were conducted in public or were not consensual.

Gay activists called the decision a partial victory, saying the court clarified for the first time that the anti-sodomy laws don’t apply to private, consensual sex.

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