Last edited: December 05, 2004

Residents' complaints sparked police sting in Roanoke's Wasena Park

Jury acquits man in park-sex case

Roanoke Times, September 8, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

A centuries-old state law makes oral sex between consenting adults -- whether homosexual or heterosexual, in private or in public -- a felony punishable by up to five years in prison.

By Laurence Hammack,
The Roanoke Times

Taking just 15 minutes Tuesday to acquit Jeffrey D. Anders, a Roanoke jury has again raised questions about a police operation that busted homosexual men for using Wasena Park as a pickup spot for sex.

Anders, who was found not guilty of soliciting an undercover officer for oral sex, did not dispute that he went to the park hoping for just such an encounter.

But the defense successfully argued that Anders' felony charge was the product of two things: a persistent undercover officer who did most of the soliciting, and the selective enforcement of a law that deems consensual oral sex a "crime against nature."

"This time it's the gays. Maybe next time it will be someone else because this law could be used to prosecute 90 percent of the population," defense attorney Gary Lumsden told the jury in his closing arguments.

Since 18 men were arrested last year in a crackdown on "cruising" in Wasena Park, three have had their cases decided by juries. Anders and another defendant were acquitted; the third was convicted and sentenced to 60 days in jail.

Another 12 have pleaded guilty, but on the condition they can challenge the constitutionality of a centuries-old law that makes oral sex between consenting adults -- whether homosexual or heterosexual, in private or in public -- a felony punishable by up to five years in prison.

Three cases are still pending.

Because the facts of each arrest are different, both Lumsden and Assistant Commonwealth's Attorney Alice Ekirch agreed that two acquittals should not be used to draw sweeping conclusions about the entire operation.

"The next one will be heard by 12 different people, and it will be a different set of facts," Ekirch said.

If nothing else, though, Tuesday's verdict shows that city juries have so far been reluctant to convict men based on their words alone. The one jury conviction so far was of a man who groped the undercover officer's groin while proposing oral sex and then began to unzip the officer's pants before he was arrested.

Police and prosecutors have cited such brazen sex acts in the park, and the citizen complaints that followed, as the reason they filed charges. Defense attorneys counter that if there were such acts, they happened out of public view, often in the dark after the park had closed.

There was no evidence that Anders, 30, ever touched the officer.

Like the earlier case that ended with an acquittal, testimony during Anders' trial showed that his entire encounter with Sgt. B.T. Clingenpeel transpired while they sat in separate cars parked on the edge of Wiley Drive.

Clingenpeel testified that he was there the night of Sept. 29 to back up other officers posing as gay men. He said Anders pulled into the parking spot next to him, and they struck up a conversation in the midst of a rainstorm.

Lumsden argued it was Clingenpeel who first brought up the subject of sex, then responded with an enthusiastic "that sounds good" when Anders suggested he perform oral sex on the officer.

Just as significant, Lumsden argued, was the way that Clingenpeel was always the one to revive the conversation, which was filled with long pauses.

To convict Anders, the jury had to find convincing proof that he "commanded, entreated, or otherwise attempted to persuade" the officer to commit a felony, in this case, oral sex. A mere statement of desire by Anders to have sex was not enough for a conviction.

Given that Clingenpeel seemed so receptive of Anders' offers, Lumsden argued that his client could not be convicted of solicitation.

Anders, who previously has been convicted of soliciting sex in Wasena Park under a different law, did not testify or present any evidence Tuesday. He declined to comment after the trial.

The law against oral sex is rarely enforced in Roanoke -- a fact that Lumsden used as ammunition for his selective enforcement argument.

"There has been a class of people that have been targeted, and now they have taken the law and manipulated it," he told the jury. "You may dislike what [Anders] is and what he likes to do, but this is not the way to handle it."

Ekirch took offense to suggestions that gays were treated unfairly.

"This has nothing to do with a person's sexual preference," she said. "It has everything to do with illegal activity taking place in the Commonwealth of Virginia."

But after deliberating just 15 minutes, the jury concluded differently.

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