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
Email: response@roanoke.infi.net
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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