Last edited: February 14, 2005

The Law 'Is Only Used To Persecute Gay People,' Says Gay Rights Supporter

Sex charges stir controversy

Authorities say the felony indictments condemn sex in public places -- sex that just happens to involve homosexuals

Roanoke Times, November 22, 1998
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

By Laurence Hammack, The Roanoke Times

In the jargon of grand jury indictments, it's called a crime against nature.

But in the cases of 18 men accused of seeking oral sex with other men -- who turned out to be undercover Roanoke police officers -- critics are calling it something else.

Words like "selective enforcement" and "entrapment" are being used to question the fairness of a police operation that leveled felony charges against men who allegedly went looking for consensual sex in Smith and Wasena parks.

"It is only used to persecute gay people who are presumed to be committing a felony," said Mary Boenke, co-president of the Roanoke chapter of Parents, Family and Friends of Lesbians and Gays.

Members of the group recently met with Mayor David Bowers, Police Chief Atlas "Joe" Gaskins, Assistant Commonwealth's Attorney Dennis Nagel and other city officials. A petition addressed to City Council is also being circulated among the gay community, although PFLAG is distancing itself from the document's most serious accusation of police entrapment.

Police and prosecutors say the indictments are a condemnation of sex in public places -- sex that just happens to involve homosexuals.

"The only agenda here is to drive public sex out of public parks, whether it's heterosexual or homosexual activity," Nagel said.

For years, Roanoke police have sought to curb cruising, or the seeking of anonymous gay sex, by placing undercover officers in parks, shopping center restrooms and other places where the practice often occurs. Offenders are usually charged with misdemeanor indecent exposure and fined in General District Court.

After receiving complaints this fall that cruising had escalated to blatant sexual activity in neighboring Smith and Wasena parks, authorities tried a new tactic.

On Nov. 2, a grand jury in Roanoke Circuit Court returned indictments on charges of soliciting to commit the felony of consensual sodomy, defined by state law as a "crime against nature." Offenders face up to five years in prison if convicted.

In the coming months, as the cases work their way through the court system and the more freewheeling court of public opinion, they could produce a kaleidoscope of questions:

Is it time for Virginia to reconsider its anti-sodomy law, which makes oral sex a felony even when committed by consenting adults?

By charging only homosexual men with soliciting for sodomy, are police unfairly targeting gays while turning a blind eye to similar heterosexual activity in bars and nightclubs?

And is cruising an infringement on the rights of citizens who use city parks for more traditional reasons, or the result of gays having few places to mingle openly in a society that limits their options?

If there is one thing that both sides agree on, it's the notion that sex in public parks is unacceptable. Having agreed on that much, they disagree on whether it's actually happening.

The petition lambastes police for "hunting down what is basically gay men voluntarily engaged in talk and just talk."

To bring a charge of soliciting sodomy, police need only show that the offender "commanded, entreated or otherwise attempted to persuade another person to commit a felony." Unlike the misdemeanor charge of prostitution, there is no requirement of a "substantial act in furtherance" of the offer for sex.

"You don't have to commit [a felony], you only have to talk about it," Boenke said.

But police maintain there is much more happening in the parks than just talk.

In some cases, undercover officers observed men openly masturbating before any verbal contact was made, said Lt. R.E. Carlisle of the Police Department's vice bureau.

And once conversations were struck, Carlisle said, police charged only men who indicated a willingness to have sex in the park.

That's not what Roanoke lawyer Sam Garrison has heard from the five men he represents on soliciting indictments.

"The evil that they persistently say they are trying to combat is having sex in public places," Garrison said. "The trouble is, none of the people I'm personally aware of came anywhere close to having sex in a public place."

In the cases that he is familiar with, Garrison said, it was the police who usually approached the suspects and initiated the topic of sex.

That's probably not enough to show entrapment, which requires proof that police planted the idea of committing a crime in the mind of a suspect who was not otherwise so inclined.

"Judges and juries may not find there was entrapment because the gay guy was predisposed to solicit," Garrison said. "But they may find that the police conduct was sufficiently enticing, even overbearing, that it will become a significant mitigating factor."

Police, however, say there's nothing to prohibit them from having a conversation with a criminal suspect, whether they're trying to get a street dealer to sell drugs or a man to propose sex.

Carlisle said there is no basis for claims of entrapment, but he declined to elaborate on what undercover officers said to the suspects.

"This is not the place or the time to discuss our methods of operation," he said. "That's for the courts to decide."

In bringing the solicitation for sodomy indictments, Roanoke authorities are essentially prosecuting men for talking about a crime that is seldom prosecuted when it's actually committed.

In 1986, the U.S. Supreme Court held in a 5-4 decision that laws prohibiting sodomy are not an unconstitutional invasion of privacy. The decision upheld a Georgia law used to prosecute a man who was seen engaged in homosexual sex in his home by a police officer who was there to serve a court paper.

Virginia law makes oral sex between consenting adults a felony punishable by up to five years in prison. Charges are rare in Roanoke. But they are not unheard of, and usually result from police happening upon the crime in progress.

A prostitute was charged one night last year after police caught her in the act with a motorist in a downtown parking lot. She pleaded guilty and received a one-month sentence. The man was not prosecuted.

And in perhaps the only sodomy case to go to a Roanoke jury in recent years, a jury convicted a man of attempting to have oral sex with another man near Wasena Park in 1997. After hearing testimony that police officers hid in the woods and waited for the men to have sex, the jury imposed a $1,000 fine.

"The jury obviously didn't think that much of the offense, as far as deciding what the appropriate punishment was," said Michelle Derrico, a Roanoke lawyer who defended the man.

Chris Kowalczuk, another Roanoke lawyer who represents one of the men charged this month, is already planning to challenge the soliciting law on the basis that the underlying charge -- sodomy -- is an unconstitutional violation of privacy.

"Consenting adults in 1998 ought to be allowed to have sexual contact with one another without the invasion of the government," Kowalczuk said.

As for Bowers vs. Hardwick, the U.S. Supreme Court decision that upheld state sodomy laws, lawyers said the legal and social landscape has changed in the past 12 years. "I am absolutely sure as a lawyer that in my lifetime, Bowers will be overruled," Garrison said.

Roanoke is not the only locality to use the state's anti-solicitation law to target gay cruising. Charlottesville and Richmond have conducted similar operations in the past year, according to Shirley Lesser of Virginians for Justice, a policy group that advocates gay and lesbian issues.

One reason for the increased activity might be a 1996 Virginia Court of Appeals decision that struck down a challenge of the law in Virginia Beach.

In that case, the court found no evidence that police discriminated against homosexuals in charging a man with soliciting for sex in a park. Nagel said the ruling was a factor in the decision to use the law in Roanoke.

This is not the first time Roanoke police have been accused of unfair treatment of homosexuals.

In 1990, the American Civil Liberties Union charged that an anti- solicitation ordinance passed by City Council under the apparent guise of fighting prostitution was instead used to target homosexuals cruising in parks.

The ordinance -- which made it a misdemeanor to offer or accept an offer of sodomy, adultery or fornication -- was attacked as a "shameful invasion of privacy."

City Council revised the law to make it apply only to sex-for-money deals struck in public. But a judge still found it "fatally flawed" the following year under a challenge from Paul Holt, a one-time prostitute who now works as a bail enforcement agent.

The petition called the most recent batch of indictments "a repeat of the same underhanded police tactics that drew such controversy in September of 1990."

"If the Police Department is serious about equal prosecution of all 'cruising,' then let them equally pursue cruising among young straights along Williamson Road, in Valley View Mall and on the Roanoke City Market," the petition continued.

Carlisle responded: "If we're out targeting gays, how could we have made 200 arrests of heterosexual people in the past year?" -- a reference to those charged with prostitution and solicitation of prostitutes.

Members of PFLAG wonder why police are so concerned about consensual sex when violent crimes and drug dealing abound in the city.

"Sex in public places and soliciting for sex in public parks is wrong and it's bad and we don't like it," Boenke said. "But sex between consenting adults is not causing the level of pain and suffering that many other problems in our city are causing, and they should be getting more priority."

Carlisle responded: "We have a sworn obligation to protect the recreational quality of our parks, and that's what we're going to do."

He said police began their investigation only after receiving a number of complaints. Among them: a mother whose young child found a used condom while playing in the park, a young man who told police he was sexually abused by a homosexual in park restrooms nearly two years ago, and reports that young children were being propositioned in the park.

Carlisle noted that a significant number of the men charged are from outside Roanoke.

"It seems like Wasena Park has become a hub for this type of activity," he said. "The parks are for those who live in the community, but we're seeing that they are becoming a meeting place for gays of Southwest Virginia."

So far, the only defendant's name to enter the public fray has been that of Shane Alan Wolfe.

Wolfe, 22, was charged one day after the grand jury session, after police returned to the parks for a follow-up investigation. Because he's a fourth- grade teacher at Monterey Elementary School, police were required by law to inform the city school system of his arrest. He has since been suspended.

Other men charged have included nurses, restaurant workers, business managers, computer programmers and a counselor. Only one told police he was unemployed.

A parent of one of Wolfe's pupils wondered why he has been the only one singled out.

Natasha Ferguson said Wolfe is an "excellent teacher" who was willing to meet with parents at their homes, and sometimes would call her just to say how well her 9-year-old daughter was doing.

Because the crime that Wolfe is accused of has nothing to do with his job and allegedly occurred after school hours, Ferguson questioned whether it should threaten his career.

"If he is a homosexual, that doesn't make a bearing on how he does his job," she said.

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