Last edited: December 07, 2004

SJC Limits Prosecution for Sodomy

Boston Globe, February 22, 2002
Box 2378, Boston, MA 02107
Fax: 617-929-2098

By John Ellement, Globe Staff

In a ruling hailed as historic by gay rights advocates, the state’s highest court yesterday gutted longstanding sodomy laws, ruling that people who engage in sodomy in semipublic places such as parking lots, wooded areas, and public beaches cannot be prosecuted as long as they make sure they cannot be seen by others.

The ruling was sought by Gay & Lesbian Advocates & Defenders in order to end what it considers discriminatory treatment by law enforcement toward gays and to extend the same rights of privacy and freedom enjoyed by heterosexuals to gay men and lesbians, said Jennifer L. Levi, the GLAD lawyer who argued the case before the Supreme Judicial Court.

"For the first time, the court has said that neither of the state sodomy laws apply to private consensual conduct," Levi said. "What this means is that antique laws cannot be used to intrude on people’s right to engage in acts of intimacy when they are in private."

Levi said she expects the ruling to curtail, if not eliminate, law enforcement sweeps on so-called gay cruising areas such as highway rest stops. She said police have used the antisodomy laws to target gays for criminal prosecution while not applying the same standard to heterosexuals engaged in the same acts in lover’s lanes. "By limiting the scope of these laws, we take away some of the police’s ability to target gay people in a discriminatory way," Levi said.

But CJ Doyle, executive director of the Catholic Action League of Massachusetts said the ruling could lead to more sexual activity in public and deter some families from using public places.

"It means people won’t be able to take their children walking in the Blue Hills. It means people won’t be able to use rest stops," he said. "It means that people will have to be more careful about traveling on public beaches."

Doyle also said he wasn’t surprised by the SJC decision. "It doesn’t contain a single justice who supports traditional morality," Doyle said. "This will prevent reasonable efforts by law enforcement to prevent lewd displays of public behavior. It will leave more limitations on the freedom of ordinary citizens and families to enjoy public places."

In the unanimous ruling written by Justice Roderick I. Ireland, the court technically threw out the case on the grounds that none of GLAD’s plaintiffs were currently facing criminal prosecution for violating the two antisodomy statutes, first codified in 1697.

Before it dismissed the case, the court gave GLAD some of what it wanted by extending to the antisodomy laws rulings from 1974 and 1981 that decriminalized other forms of private, consensual sexual acts between adults.

In those cases, known as Balthazar and Ferguson, the SJC set out broad definitions of a public place and also set the standards prosecutors must meet before they can win a conviction. Among other things, the court said the fact that someone else sees the sex act does not by itself make the behavior criminal. Instead, prosecutors must show that the individuals knew they could be seen by others and performed the sex act anyway.

"We now clarify that our holdings in the Balthazar and Ferguson cases concerning acts conducted in private between consenting adults extend" to the antisodomy laws, Ireland wrote in yesterday’s three-page ruling.

GLAD’s plaintiffs, who included a married heterosexual couple, specifically wanted the SJC to tell them if performing sodomy in a "wooded outdoor area, vehicles parked in parking lots, and secluded areas of public beaches" would expose them to prosecution.

The SJC declined to revisit the definition of what is a public place and what is a private area, ruling only that acts of sodomy are legal as long as they are done in private or out of public view.

Levi said she would have welcomed a broader ruling, but said that by linking its ruling to the two earlier cases, the SJC has made the new ground rules clear.

The attorney general’s office defended the antisodomy laws before the SJC, while noting that prosecutions under the laws are rare. As part of the GLAD suit, the attorney general’s office, along with the Suffolk and Middlesex district attorney’s offices, agreed that no one would be prosecuted under the statutes unless the act was performed in public, or there was evidence of coercion or violence.

Ann Donlan, a spokeswoman for Attorney General Thomas F. Reilly, downplayed the significance of the SJC ruling, saying that it merely restated existing law and that the court had not found the law unconstitutional, as GLAD had requested.

Massachusetts has two antisodomy statutes, one prohibiting "the bominable and detestable crime against nature," which case law has defined as anal sex, and one prohibiting "unnatural acts," which various court rulings have applied to both oral and anal sex.

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