Last edited: February 14, 2005

Court: Sodomy Laws do Not Cover Private Acts / Network, February 22, 2002

By Dan Kerman

SUMMARY: Massachusettsí highest court ruled Thursday that the stateís sodomy laws do not apply to private consensual acts.

Gay rights groups are applauding a decision by the Massachusetts Supreme Judicial Court, which ruled Thursday that the stateís sodomy laws do not apply to private consensual acts. The high court found that two statutes of Massachusetts law cannot be enforced against those engaged in oral or anal sex, as long as those involved did not intend it to be in public view.

"This is a tremendous victory," said attorney Jennifer Levi with the group Gay & Lesbian Advocates & Defenders (GLAD). "The court today clarified that these antiquated laws may not be used to intrude on individualsí rights to engage in common acts of intimacy in private settings," she said.

GLAD filed the case in July 2000 on behalf of nine individuals, saying the two provisions, which provide penalties of up to 5 and 20 years for convictions for oral and anal sex, are unconstitutional.

Because none of the plaintiffs were currently subject to prosecution, the court dismissed the case without ruling on the constitutionality of the laws. However, before doing so, the court did make it clear that neither provision applies to private, consensual conduct.

While lawyers for the state argued the statutes are used to put an end to public sex, gay rights activists argued that police are using them to target gays.

"Itís a national issue of discriminatory enforcement of the law; targeting gay men with undercover vice-officers, while not similarly targeting straight people," said Myron Dean Quon, deputy director of the Lambda Legal Defense and Education Fund. "Itís great that Massachusetts has joined other states in clarifying that police cannot use the sodomy law in a discriminatory manner," Quon added.

According to Lambda, all 50 states had some type of law criminalizing consensual sodomy as recently as the 1960ís. Currently only 13 states have sodomy laws, three of which apply exclusively to same-sex conduct.

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