Last edited: December 05, 2004

18th Defendant Bases Arguments on Privacy

Judge Says He'll Rule On Sodomy Law Next Month

Roanoke Times, January 15, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

A lawyer argued that the charge is about whether there is a compelling state interest to have a law that makes oral sex between consenting adults a crime.

By Laurence Hammack, The Roanoke Times

There may be a decision sooner than expected on an anti-sodomy law used to deter what a Roanoke prosecutor calls the "morally bankrupt" practice of seeking sex in city parks.

One day after a Circuit Court judge said it would be March before he decides if the law that criminalizes consensual sodomy is unconstitutional, a second city judge indicated Thursday that he may rule on the same issue by Feb.9.

Both Judge Richard Pattisall and Robert Doherty are hearing cases of men accused of engaging in "cruising," or the seeking of gay sex in public places.

Eighteen men were charged last November with soliciting undercover police officers in Wasena Park to commit a felony. The felony in question is consensual sodomy, a crime punishable by up to five years in prison.

After hearing a full day of testimony on behalf of 17 of the defendants, Pattisall on Wednesday set a March 1 deadline for final arguments from the attorneys involved in those cases. The men are asking that the felony charges be dismissed for two reasons: that Virginia's sodomy law is an unconstitutional invasion of their privacy rights and that Roanoke police used selective enforcement to target only gay men for prosecution.

The remaining defendant appeared before Doherty on Thursday, when his case was put on a faster track.

After hearing attorney Chris Kowalczuk make an argument slightly different from those in the other cases he did not include the claim of selective enforcement Doherty said he would rule in time for Shane Alan Wolfe's Feb. 9 trial. Wolfe, a teacher at Monterey Elementary School, was suspended without pay after his arrest in November.

If the defense motion is unsuccessful, Wolfe would be the first of the 18 defendants to face a jury.

At Wolfe's motions hearing Thursday, Assistant Commonwealth's Attorney Dennis Nagel made his strongest comments to date about the alleged offenses.

"What Shane Wolfe did out there in the park is morally bankrupt," said Nagel. Prosecutors allege that on Nov. 3, one day after the other 17 defendants were indicted by a grand jury, Wolfe approached two undercover officers in Wasena Park and offered to perform oral sex on both of them.

No sex act was committed in that and other cases, however, and defense attorneys say their clients are being unfairly prosecuted for simply talking about a common sexual activity that the government has no business regulating.

Kowalczuk argued that the charge against Wolfe has nothing to do with gay cruising, but whether in 1999 there is a compelling state interest to have a law that makes oral sex between consenting adults either in public or in private a crime.

"This particular statute is like a nuclear bomb," he said. "It obliterates everything in its path."

Authorities say they decided to bring felony charges of soliciting for sodomy only after misdemeanor arrests failed to discourage cruising and sexual activity in bathrooms and other public places. Since 1995, Roanoke police have made 66 cruising-related arrests for indecent exposure and sexual battery in city parks and in Valley View Mall restrooms.

"If Shane Wolfe wanted to exercise what right of privacy he had, he ought to have been in his own bedroom and not in a public park," Nagel said.

Although the U.S. Supreme Court has held that state laws forbidding consensual sodomy pass constitutional muster, a growing number of state Supreme Courts have since struck down the laws on privacy grounds.

"The Commonwealth of Virginia should follow in the footsteps of her sister states which have implicitly recognized that man's basic right of privacy should include, at a minimum, a ban on criminal sanctions against adults who engage in voluntary acts that do not demonstrably harm anyone else," Kowalczuk stated in his motion to dismiss the charges.

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