Last edited: December 07, 2004

Panel Urges Virginia to Keep Sodomy Ban

Removing Law Could Doom Pending Cases, Panel Says

Associated Press, December 4, 2003

Virginia needs a new law that complies with a Supreme Court ruling that struck down anti-sodomy laws but will keep its existing sodomy ban as a non-working, unconstitutional vestige, the State Crime Commission said.

The legislative panel asked a subcommittee to further study options for a new law that brings Virginia into compliance with the high court’s June ruling in a Texas case that what consenting gay people do in the privacy of their homes is not the government’s business.

Virginia’s sodomy ban is similar to Texas’.

But the commission will recommend to the General Assembly next month that it keep the sodomy old laws on the books. Removing them could doom pending court cases involving people charged or convicted under current Virginia law.

“The reason we’re going to do that is right now there are several cases working through the court systems in Virginia,” said Kimberly Hamilton, executive director of the Virginia Crime Commission.

“The (attorney general’s) office is going to deal with that on an appellate level,” she said Thursday.

Virginia law prohibits sodomy between consenting adults, even married couples, although it has not been used against married heterosexuals in years. Violators face up to five years in prison and a $2,500 fine if convicted.

Panel members, however, pondered how to delete portions of the existing law that violate the privacy rights of consenting adults while retaining bans against various sex acts in public and prostitution, offenses the Supreme Court ruling does not affect.

House Majority Leader H. Morgan Griffith, R-Salem, cautioned the panel Wednesday against new laws to punish sodomy or homosexual contact more severely than intercourse between men and women.

“It needs to be consistent on public sex, whether it’s normal heterosexual sex or sodomy. It should be the same across the board,” Griffith said.

Hamilton said the commission will work with Attorney General Jerry W. Kilgore to draft a new law that prohibits sex acts between consenting adults only when they occur in public. It plans to have its recommendations by the next commission meeting Jan. 13.

“The new statute will clarify the Supreme Court’s intent that public cases of sodomy are criminal,” Hamilton said. “We also will deal with the law as it applies to the areas of juveniles, inmates and prostitution. The court specifically said their opinion didn’t involve those three areas.”

The current statute will be kept in place until pending cases are resolved, Hamilton said.

The sodomy statute would not be the first unconstitutional law left on the books in Virginia. Crime Commission members also declined this week to recommend repealing laws prohibiting certain businesses from operating on Sundays and a ban on flag mutilation. Those laws were ruled unconstitutional in the 1980s.

The commission is examining Virginia’s sodomy law as part of its larger study of statutes that need to be revised because they have been ruled unconstitutional, Hamilton said.

Crime commission chairman Del. David B. Albo, R-Fairfax, suggested creating a separate section in the multi-volume collection of state laws listing those that have been deemed unconstitutional.

Other legislators objected to the idea.

“What we want to do with that is say, ‘We like these laws, but we know they’re unconstitutional,’” said Sen. Kenneth W. Stolle, R-Virginia Beach.

The attorney general’s office had no statistics on the number of cases pending in state courts involving the sodomy law.

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