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.
Times, July 6, 2003
P. O. Box 2491, Roanoke, VA 24010
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
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
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
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
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
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
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
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
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