Virginia
Pursues Sodomy Charges Despite Supreme Court Ruling
The
Advocate, August 20,
2003
Prosecutors
plan to pursue sodomy charges against 26 men despite a recent U.S. Supreme
Court ruling that legal experts believe invalidates Virginia’s sodomy law.
The indictments issued July 21 followed a three-month investigation of alleged
public sodomy and solicitation to commit sodomy at an adult bookstore in
Harrisonburg. They also came about a month after the Supreme Court struck down
Texas’s sodomy law. Legal experts generally agree that the high court’s
ruling means laws banning sodomy in private are unconstitutional but that laws
against public sodomy can still be enforced. In Virginia, however, the
state’s Crimes Against Nature statute does not distinguish between public
and private activity, leading some civil rights groups and gay rights
advocates to argue that Virginia’s entire law is unenforceable even against
public sodomy.
Kent Willis,
executive director of the American Civil Liberties Union of Virginia, told The
Roanoke Times, “Our interpretation is that any charges under the sodomy
law are invalid at this point.” Other misdemeanor charges were available to
the police, Willis said, including lewd and lascivious cohabitation, obscene
exhibitions and indecent exposure. Dyana Mason, executive director of Equality
Virginia, a gay rights organization, suggested that the indictments reflect
the underlying discriminatory nature of the statute. “My concern [is] that
this law can still be used to harass and intimidate gay men,” she told the Times.
Virginia
attorney general Jerry Kilgore believes the Supreme Court decision does not
preclude prosecutions for public sodomy or solicitation to commit sodomy,
spokesman Tim Murtaugh said Monday. However, Murtaugh said, Kilgore has not
issued an official opinion on the subject. Although many observers believe the
issue requires action by the state general assembly, at least one influential
legislator disagreed. House majority leader Morgan Griffith (R-Salem) said he
believes the law is fine as it is, and he said lawyers on the Virginia Crime
Commission agree. But even the prosecutor in the Harrisonburg cases believes
everyone would be better off if the general assembly rewrote the law to
clarify what’s legal and what’s not in the wake of the Supreme Court
ruling in the case of Lawrence v.
Texas.
Harrisonburg
Commonwealth attorney Marsha Garst said the men arrested in Harrisonburg were
not targeted because they were homosexuals. The police would have cracked down
on the activity just as strongly if heterosexuals were having sex in a public
place such as a bookstore, she added. But drawing the line between public and
private sodomy in Virginia is complicated by the way Virginia’s law is
written, said Sam Garrison, a Roanoke attorney and gay rights activist. Like
most states, Virginia has a “savings clause” in its state code to allow
for the preservation of the remainder of a law when part of it is struck down
by a court ruling. Virginia’s law banning sodomy has only one part—a
blanket prohibition of oral and anal sex—with no distinction between those
acts occurring in public or in private.
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