Last edited: December 06, 2004

Roanoke Judge Hopes To Rule Soon On Constitutionality Of Anti-Sodomy Law

Arguments Heard In Challenge Of Park Bust

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

Defense attorneys say that while gay men were arrested under the law last year, it could be used against anyone, any time.

By Laurence Hammack, The Roanoke Times

A law that makes consensual oral sex a felony is an unconstitutional violation of privacy and should not be used to prosecute 17 men charged with cruising for sex in a Roanoke park, defense attorneys say.

Prosecutors counter that while the law may be sweeping, their only intent is to curb sexual activity in public places often associated with cruising among homosexual men.

After hearing final arguments from both sides Monday, Roanoke Circuit Judge Richard Pattisall said he hopes to make a ruling soon.

If Pattisall grants a motion to dismiss the charges on constitutional grounds, it would be a victory for those who share defense attorney Sam Garrison's opinion. Garrison called the charges an example of "government gone wild" by enforcing a Virginia law that makes "virtually the whole adult state felons, whether they are convicted or not."

If Pattisall denies the motion, the cases would proceed to trial -- setting the stage for Roanoke juries to hear evidence of what Assistant Commonwealth's Attorney Dennis Nagel calls the "morally bankrupt" practice of seeking gay sex in parks.

Defense attorneys have attempted to show that while gay men were the target of an undercover police operation last year in Wasena Park, Virginia's anti-sodomy law could be used against anyone, any time, any place.

The law makes no distinction between public or private sodomy, or between homosexual or heterosexual offenders, in declaring oral sex between consenting adults a "crime against nature." Offenders face up to five years in prison.

In arguments Monday, Garrison reminded the judge of the testimony of R.E. Carlisle, the police lieutenant who supervised the Wasena Park investigation. Carlisle testified in January that if police overheard two consenting adults talk about having oral sex in the privacy of their home, it would be the officer's duty to intervene and warn them they were about to commit a felony.

"Do we really, in 1999, want a government that is that violative of people's privacy?" Garrison asked.

But as Nagel pointed out, the U.S. Supreme Court in 1986 upheld the right for states to have anti-sodomy laws. While finding no federal privacy protection, however, the ruling noted that state courts might strike down such laws if they are determined to violate privacy guarantees in state constitutions.

Virginia's constitution contains such a protection, Garrison said. In addition to raising the privacy argument, defense attorneys say the anti- sodomy law is based on religious grounds and thus violates the separation of church and state, and that subjecting the men to felony convictions is cruel and unusual punishment.

For all the constitutional arguments, there is still a fundamental dispute to be resolved about what really happened when undercover officers approached the men who were later indicted.

Nagel says the men were charged only after expressing a willingness to have sex in Wasena Park; defense attorneys say there was no such agreement in many of the cases.

"Isn't that the ultimate question -- the applicability of the statute to the facts of this case?" Pattisall interjected during Garrison's arguments.

Garrison responded that Pattisall should view the law "on its face" in that "it applies to everybody, and is violated by a big whopping percentage of the adult population of the state."

The 17 men are not charged with committing sodomy, but rather soliciting undercover officers to commit a felony -- in this case, sodomy. Therefore, there need be no proof that a sex act actually occurred.

William "Buck" Heartwell, an attorney who represents one of the men, argued that there are misdemeanor charges, such as indecent exposure and lewd behavior, that police could use to curb sex acts in public.

The use of felony charges, he said, is "a blunderbuss that the commonwealth is using to shoot at mosquitoes with."

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