18th Defendant Bases Arguments on Privacy
Judge Says He'll Rule On Sodomy Law Next Month
January 15, 1999
P. O. Box 2491, Roanoke, VA 24010
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
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
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
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