Last edited: February 14, 2005

Punish Public Sex, Not Private Sodomy

Roanoke Times, July 2, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

Neighbors and visitors to Roanoke's parks – or any other public place, for that matter – should not be forced to tolerate lewd behavior.

That's why there are laws against indecent exposure, immoral conduct, prostitution and the like. It's also why police had an obligation to respond last year to citizen complaints of such behavior by gay men "cruising" in Wasena Park.

The troubling part is the nature of the charges that ensued from the police crackdown.

This week, in the first trial of a defendant who contested his prosecution, a Roanoke man was convicted, fined $1,500 and sentenced to 60 days in jail – not for publicly lewd behavior, but for attempting to persuade an undercover officer to perform oral sex. Earlier, 12 men had pleaded guilty to the same offense under an arrangement by which jail sentences would be suspended and they could appeal the constitutionality of Virginia's shaky anti-sodomy law to a higher court.

The choice of charges is not a trivially technical matter. By invoking the archaic sodomy statute, the prosecution had to show only that the defendants were planning to commit the so-called crime. They did not have to show what ought to matter from a police viewpoint: whether it was to be committed in public.

Even more bizarrely, oral sex between consenting adults, even in private, is a felony in Virginia, punishable by up to five years imprisonment, while misbehavior that the state legitimately should prosecute – crimes of public indecency – is regarded as a lesser offense.

The General Assembly's failure to repeal the anti-sodomy statute is, of course, rank hypocrisy. If the law were routinely and evenly enforced – and it theoretically applies to married heterosexual as much as to homosexual couples – there'd be a special legislative session tomorrow to ax it. No law can (or necessarily should) be enforced all the time, but any law enforced so whimsically as this one ought to raise suspicions from the start.

Moreover, its employment in the Wasena Park cases seriously confuses the issue, and thereby weakens the message that the prosecutions should convey. The issue should be whether sexual solicitations occurred in public and, if so and more seriously, whether sexual acts were to, or did, occur in public. The public nature of such acts is all that should be relevant.

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