State's Anti-Sodomy Law Used To Prosecute Men Accused of Seeking Sex in Roanoke Parks
Rulings Clear Way For Sex Trials Virginia Is One Of 14 States That Prohibit
Consensual Sodomy Among Adults
May 4, 1999
P. O. Box 2491, Roanoke, VA 24010
By Laurence Hammack, The Roanoke Times
A state law that makes consensual oral sex a felony is not an unconstitutional invasion
of privacy -- at least not when applied to 18 men charged with seeking gay sex in a city
park, two Roanoke judges ruled Monday.
The decisions clear the way for potential jury trials in the city's first felony
prosecutions aimed at cruising, or the soliciting of gay sex in parks, shopping mall
restrooms and other public places.
Roanoke Circuit Judge Richard Pattisall denied a motion, filed by attorneys for 17 of
the men, to dismiss the charges on constitutional grounds. A similar decision by Judge
Robert Doherty was released Monday in the case of an 18th defendant.
Charges against all the men stem from conversations they had with undercover police
officers last year in Wasena Park.
The men are accused of soliciting the officers to commit a felony. The felony in
question is nonforcible sodomy, defined by Virginia law as a "crime against
nature" that includes oral sex and carries up to five years in prison -- regardless
of whether it is committed in public or in private, by homosexuals or heterosexuals.
Defense attorneys had asked Pattisall to dismiss the charges, arguing that the state's
sodomy law is unconstitutional on several grounds: that it violates the separation of
church and state because it is based on religious views; that it amounts to cruel and
unusual punishment; and that it violates the fundamental right of privacy afforded by the
state and federal constitutions.
While defense attorneys had argued that the law could be used to invade the bedrooms of
consenting couples, Pattisall wrote in his 15-page opinion that the defendants allegedly
never proposed that the sex they solicited take place in private.
"Common sense informs one that there can be no expectation of privacy to an act
that is performed in public," Pattisall wrote. "The defendants must seek their
remedies according to the facts they bring to court, not to imaginable or conceivable
The decisions by Pattisall and Doherty set the stage for 18 separate trials that could
last over the summer.
Assistant Commonwealth's Attorney Alice Ekirch said she intends to ask for jury trials.
"We're going to let the community decide what the appropriate disposition is,"
Sam Garrison, a Roanoke attorney who represents nine of the men, and other defense
attorneys have questioned comments attributed to their clients by police. They said that
in at least some of the cases, the undercover police officers were the ones who sought out
the men, initiated conversations about sex and generally were the aggressors.
Should there be convictions, Garrison said, a final decision will likely rest with an
"You might view this as round one of what could be a long, protracted legal battle
over the constitutionality of Virginia's sodomy statute," Garrison said.
Virginia is one of 14 states that prohibit consensual sodomy among adults. In recent
years, courts in a growing number of states -- including Georgia and Louisiana -- have
struck down their statutes.
"I just feel very badly that Virginia is going to be one of the very last states
to do away with its felony law" criminalizing sodomy, said Mary Boenke, co-president
of the Roanoke chapter of Parents, Family and Friends of Lesbians and Gays, which has been
monitoring the cases.
However, both Pattisall and Doherty were unwilling to go against a 1986 U.S. Supreme
Court ruling, Bowers vs. Hardwick, that upheld a Georgia law prohibiting sodomy.
"The findings of the U.S. Supreme Court are not wrong under our system of
government," Doherty wrote. "They cannot be changed unless the Supreme Court
reverses itself, unless Congress changes the law, or unless the Constitution is changed by
For years, Roanoke police have brought misdemeanor charges such as indecent exposure
and assault against "cruisers" who seek anonymous gay sex in city parks or mall
Police have said earlier that they decided to seek felony indictments from a grand jury
last November after receiving complaints from citizens about blatant sexual activity in
Wasena Park. Defense attorneys counter that their clients engaged in conversation at the
most, and that no one has been charged with having sex in the park.
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