Sodomy Charges Set to Be Pursued
Washington Times, August 19, 2003
HARRISONBURG, Va. (AP)—Prosecutors plan to pursue
sodomy charges against 26 men despite a U.S. Supreme Court ruling that legal
experts say invalidates Virginia’s antisodomy law.
The indictments issued July 21 followed a three-month investigation of
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’ antisodomy law.
Legal experts generally agree that the high court’s ruling means that
laws banning sodomy in private are unconstitutional but that laws against
public sodomy can be enforced.
Virginia’s “Crimes Against Nature” statute, however, does not
distinguish between public and private activity, leading some civil rights
groups and homosexual rights advocates to argue that the state’s 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, he said, including lewd and lascivious
cohabitation, obscene exhibitions and indecent exposure.
Dyana Mason, executive director of Equality Virginia, a homosexual 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 paper.
Virginia Attorney General Jerry W. Kilgore says he believes the Supreme
Court decision does not preclude prosecutions for public sodomy or
solicitation to commit sodomy, spokesman Tim Murtaugh said yesterday.
Mr. Murtaugh, however, said Mr. Kilgore has not issued an official opinion
on the subject.
Although many say the issue requires action by the General Assembly, at
least one influential legislator disagreed.
House Majority Leader H. Morgan Griffith, Salem Republican, said he
believes the law is fine as it is and that lawyers on the Virginia Crime
But even the prosecutor in the Harrisonburg cases says he 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
Lawrence v. Texas.
Harrisonburg Commonwealth’s Attorney Marsha Garst said the men arrested
in Harrisonburg were not targeted because they are homosexuals. The police
would have cracked down on the activity just as strongly had heterosexuals
been having sex in a public place such as a bookstore, she said.
But drawing the line between public and private sodomy in Virginia is
complicated by the way the state’s law is written, said Sam Garrison, a
Roanoke lawyer and homosexual 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 barring sodomy has one section, a blanket prohibition of
oral and anal sex, with no distinction between acts occurring in public or in
University of Virginia Law School professor Anne Coughlin said, “Here,
you don’t know what to save.”
Mr. Griffith, a lawyer, says he believes the law can be used as is and that
the General Assembly doesn’t have to tinker with it.
“I think we’re better off leaving the thing alone and letting the
courts sort out some of it, and then us step in if there’s a problem,” he
But Mr. Griffith said that when the General Assembly session starts in
January, as many as 20 bills to rewrite the sodomy law could be introduced.
“I think there are going to be bills all over the place,” he said.
“If we could get a circuit court opinion on this before January, it would
clarify whether or not we need to do anything with the code.”
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