Three Arrested in Raid Plan to Challenge Law Banning Gay Sex
St. Louis
Post-Dispatch, August 7, 2002
900 N. Tucker Blvd., St. Louis, MO 63101
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By Matthew Hathaway of the Post-Dispatch
Missouri’s ban on gay sex, already thrown out in the western part of the
state by a Kansas City appeals court, might face another challenge from three
of the men charged after a raid on a Jefferson County sex shop.
An attorney representing the men said he would file a motion this week to
dismiss the cases on the grounds that the Missouri statute no longer prohibits
consensual gay sex.
An amendment added to Missouri’s sexual misconduct law prohibits a form
of sexual touching "without that person’s consent." In 1999, the
court of appeals for Missouri’s western district ruled that the amendment’s
consent clause applied to every offense in the statute, including gay sex.
Missouri law states: "A person commits the crime of sexual misconduct
in the first degree if he has deviate sexual intercourse with another person
of the same sex or he purposely subjects another person to sexual contact or
engages in conduct which would constitute sexual contact except that the
touching occurs through the clothing without that person’s consent."
The Kansas City decision isn’t binding in Missouri’s eastern and
southern districts because the Missouri Supreme Court has not heard this case.
Richard Sindel, who is defending the men on behalf of the American Civil
Liberties Union, said that if the motion to dismiss is thrown out, "This
case will almost certainly go before the state Supreme Court."
Jefferson County Prosecutor Bob Wilkins says he believes the law is
wrongheaded and possibly unconstitutional, but he added that it clearly
forbids gay sex even if it’s consensual. Although he disapproves of the
statute, Wilkins said he was applying it because, "It is the only weapon
I have to protect my community from what was going on at this
establishment."
In March, undercover police arrested 13 people in a raid on Award Video,
now called Maximus Video, an adult video store in the High Ridge area of
Jefferson County. Police said they responded to a tip claiming people were
having sex—sometimes for money—in a small room where adult films were
shown.
Misdemeanor charges were filed against two customers for allegedly
possessing marijuana. Also, six men were accused of having homosexual sex. No
prostitution charges were filed. Police said at least one woman was engaged in
a heterosexual sex act but was not charged.
Sindel said that if charges were not dropped, he would argue that the law
violates the men’s constitutional rights to equal protection.
Denise Lieberman, legal director of the ACLU of Eastern Missouri, said that
if the law is interpreted to prohibit consensual gay sex, it is
unconstitutional.
"There were heterosexuals engaged in sexual activity and there were
same-sex couples involved in the very same activity, but only the same-sex
couples were charged," Lieberman said. "If you’re going to have a
law, it should be applied equally."
Wilkins said that he was not prosecuting the men because of their
orientation.
"It is not the homosexual conduct that offends me. It is the group sex
in a public setting that offends me," Wilkins said. "If this was a
consensual act between adults in a private setting, I wouldn’t do anything
about it."
Wilkins said that he had asked area legislators to amend Missouri’s
sexual misconduct law to make it easier to prosecute heterosexuals who have
sex in public.
Texas, Oklahoma and Kansas are the only other states that outlaw sex
between same-sex partners, although other states prohibit specific sex acts.
In March, an Arkansas judge ruled that the state’s ban on gay sex acts was
unconstitutional, saying it unfairly singled out homosexuals for prosecution.
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