Last edited: February 14, 2005

Sodomy Ruling Might Not Alter Much in Virginia

Supreme Court recently ruled against anti-sodomy laws

Some have hailed the ruling as a landmark victory for the homosexual rights; others have railed against it as a gateway to legally recognized gay marriages.

Roanoke Times, July 6, 2003
P. O. Box 2491, Roanoke, VA 24010
Fax: 703-981-3204

By Laurence Hammack, The Roanoke Times

For the past 5 1/2 years, Trey Gregory has lived the life of a convicted felon who is not in prison, yet not entirely free.

He cannot vote. He must list his crime on job applications. He cannot buy a gun for his son because firearms are not allowed in the home of a felon.

Gregory’s crime? He and a woman engaged in consensual oral sex in the privacy of his home.

In Virginia, that was a felony punishable by up to five years in prison—at least until June 26, when the U.S. Supreme Court ruled that anti-sodomy laws are unconstitutional. The ruling, based on the premise that government has no place in the bedrooms of consenting adults, invalidated sodomy laws in Virginia and 12 other states.

Some have hailed the high court’s decision as a landmark victory for the homosexual-rights movement, while others have railed against it as a gateway leading to legally recognized gay marriages and other controversial measures.

Lost in all of the debate about the future, Gregory says, is the question of whether the ruling can be used to correct injustices of the past.

That issue will soon be put to Gov. Mark Warner when Gregory seeks a pardon.

With the Supreme Court’s ruling, “we’ve got the ammunition to try to get the pardon,” said Chris Kowalczuk, a Roanoke attorney who represents Gregory.

In 1997, Gregory was charged with raping and sodomizing his ex-girlfriend in his Botetourt County cabin. A jury acquitted him of forcible rape and sodomy, but—based on his admission that they engaged in oral sex—convicted him of consensual sodomy.

Until the Supreme Court struck down a similar Texas law, Virginia’s “crimes against nature” law defined sodomy as oral or anal sex between consenting adults, regardless of their sexual orientation.

Forcible sodomy, which was not covered by the high court’s ruling, still carries a sentence of up to life in prison. In Gregory’s case, the charge of consensual sodomy was made available to the jury as an alternative verdict.

“It was kind of like a catch-all,” he said. “Make me defend myself on a terrible charge, and then turn around and get me for defending myself.”

Gregory was fined $25. But the cost of being labeled a convicted felon, he’s found, is much higher.

“I can’t vote for the office of president of the United States, but Bill Clinton could hold it, and he did the exact same thing that I did,” Gregory said.

Sodomy prosecutions have historically been rare, Botetourt County Commonwealth’s Attorney Joel Branscom said. The only times he uses the charge, Branscom said, are in cases like Gregory’s—when an attack on the victim’s credibility put the more serious charges in doubt—or to curb public solicitation of sex acts.

The latter use of the charge has generated the most controversy in the Roanoke Valley. In 1998, Roanoke police used the sodomy statute to crack down on cruising, or the practice of seeking sex partners, in Wasena Park.

Undercover officers posing as gay men were placed in the park, and more than a dozen men were charged with soliciting the officers to commit a felony after striking up conversations that turned to sex.

The Virginia Court of Appeals upheld the convictions, ruling that the men could not challenge the law on privacy grounds because their crimes were committed in public. The Texas case that led to the U.S. Supreme Court’s decision was different; it involved a man having sex in his bedroom with another man.

Although the sodomy law is often associated with homosexuals, Gregory says his case shows that it can affect anyone.

“I’m not taking a stand for or against homosexuality,” Gregory said. “What people do behind closed doors is their own business.”

Change to come slowly

The Supreme Court’s ruling in Lawrence v. Texas was only a few hours old last month when the predictions began about what it meant.

“With its decision, the court has given homosexual activists the opening they have been seeking to impose their agenda on the people of Virginia,” said Victoria Cobb, director of legislative affairs for the Family Foundation of Virginia.

That agenda, according to Cobb, consists of legally recognized gay marriages, adoption rights for homosexuals and “the teaching of crimes against nature to public school children across Virginia.”

But others say change will come slowly—if at all—in Virginia, where the General Assembly for years has turned back efforts to repeal the sodomy law. Virginia also has a law prohibiting gay marriages, and it does not recognize same-sex unions from other states.

Dyana Mason, executive director of Equality Virginia, a statewide gay and lesbian organization, said the group’s agenda for next year’s General Assembly session will change very little as a result of Lawrence v. Texas.

The ruling will give the group more leverage on causes it has championed in the past, such as adding sexual orientation to a state hate-crime law and seeking discrimination protection for gays.

Other issues, such as gay marriages, are not expected to come up anytime soon.

“I think the question of marriage will be decided by other states and the Supreme Court,” Mason said. “I don’t think Virginia is going to lead the way on that issue.”

Mason said the Supreme Court ruling could inspire some “anti-gay” legislation, such as the revival of a failed bill from last year that would have prohibited public school teachers from talking about sodomy in the classroom.

“We fear our opponents are going to try to strike fear in the hearts of Virginians and try to introduce legislation that would take away the few protections that we now have in the state,” Mason said.

Del. Bob Marshall, R-Manassas, recently told The Washington Post that the Supreme Court’s ruling was “cultural suicide” and that the justices who voted to overturn sodomy laws wear “the black robes of death.”

Some legislators may balk at repealing the state’s anti-sodomy law, even though it has been found unconstitutional. But even if the law remains on the books, it will not be enforceable, according to Patricia Logue, a lawyer for the Lambda Legal Defense and Education Fund, the group that challenged the Texas law.

It’s not unusual for outdated laws to remain on the books for years. For example, a “blue law” that prevented most businesses from opening on Sundays is still part of the state code, even though it was found unconstitutional by a Roanoke judge and later by the Supreme Court.

Sen. John Edwards, D-Roanoke, said he does not expect the sodomy decision to have much impact on next year’s lawmaking.

The ruling’s biggest effect, at least in the short term, could be symbolic rather than practical.

“The sweeping language of it underpins the constitutional right of privacy, which I think is very important,” Edwards said. “I would hope that it would lead people to have a greater understanding and tolerance for other people.”

‘The law of the land’

“This is now the law of the land,” Gov. Mark Warner said the day the Supreme Court invalidated Virginia’s sodomy law, “and the commonwealth will comply.”

Less clear, however, is the question of whether past convictions under the law will be erased with a gubernatorial pardon such as the one Gregory plans to seek.

“The governor will give any pardon request he receives careful consideration,” said Warner spokeswoman Ellen Qualls. But Qualls declined to comment on what effect the recent ruling might have on the governor’s decision.

Richard Bonnie, a criminal law professor at the University of Virginia, said there is legal precedent for someone convicted of a charge later found to be invalid to clear his or her record through a pardon by the governor or expungement of the conviction by a judge.

The pardon process can be as much political as legal, though, and it would be rare to find an elected official unconcerned about how the exoneration of a sex offender might play out in the political arena.

But to someone such as Gregory, being labeled a sex offender is equally offensive.

“I think it’s a shame that it has all been focused on homosexual rights,” Gregory said. “It’s not a homosexual versus heterosexual thing; it’s not a black versus white thing. It’s a people thing. It’s the government versus the citizens. That’s exactly what it is.”

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