Last edited: November 07, 2004

Appeals Court Upholds Dismissal of Case Against Fornication Law

The Daily Herald, October 1, 2004

SALT LAKE CITY—A state appeals court has upheld the dismissal of a 2003 lawsuit challenging Utah’s laws against sodomy and fornication.

The case involves plaintiff D. Berg, an adult, unmarried male who alleges that two state statutes criminalize his private sexual conduct, which is protected by the U. S. and Utah Constitutions.

The original lawsuit was filed the day after the U.S. Supreme Court struck down a Texas law banning gay sex.

The Third District Court dismissed the case last fall after determining that he had no legal standing to bring the case—since he had never been prosecuted and did not “demonstrate an actual and concrete injury necessary to create a case.”

Berg’s appeal claimed his personal stake in the case involved his desire to “know what his rights are”.

But in the opinion issued Thursday, the appeals court said Berg failed to prove the state was likely to prosecute him and said he failed “to raise an issue of substantial public import.”

“Prosecutors rarely use the sodomy and fornication statutes,” wrote Judge Russell W. Bench. “The rare instances where prosecutors have used the statutes do not suggest the presence of a widespread problem requiring judicial intervention in this case.”

But the court suggested the state’s law could be tested in another case, involving a sodomy charge against a 19-year-old American Fork man accused of having consensual oral sex with a 16-year-old girl.

Berg’s attorney, Brian Barnard, said he wanted to read the opinion in more detail and decide whether to take the case to the Utah Supreme Court.

“The issue is should these laws be on the books,” Barnard said. “The Attorney General says we won’t prosecute but we want to keep the law on the books. ... Because we want to brand people as criminals and stigmatize them?”

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