Last edited: December 14, 2003

Virginia Continues to Prosecute Gay Men for Sodomy

Lawmakers expected to pursue new ban public sex

Washington Blade, December 12, 2003
1408 U Street, NW, 2nd Floor, Washington, DC 20009

By Joe Crea

Despite the Supreme Court ruling in Lawrence vs. Texas declaring state sodomy laws unconstitutional, Virginia continues to prosecute gay men under its old law by targeting those who solicit sodomy in public but don’t engage in any public sexual acts. Meanwhile, lawmakers are expected next month to study options for a new law intended to bring Virginia into compliance with the high court’s ruling by prohibiting both homosexual and heterosexual public sex while maintaining the state’s sodomy statute.

Since the court’s June ruling, the prosecutions have continued. Twenty-six men were indicted in July for soliciting for sex in an adult bookstore in Harrisonburg. One of the men, Carl Herring, 44, of Elkton, pled guilty last month to two counts of indecent exposure for his part in sexual activities that police discovered during their investigation.

Herring originally faced one charge of solicitation to commit sodomy and two misdemeanor charges of indecent exposure. Instead of facing a trial on the solicitation charge, he entered a plea agreement that reduced the felony charge to a third indecent exposure charge.

Circuit Judge John J. McGrath sentenced Herring to 30 days in jail, with 15 days suspended, and fined him $550. Herring also will be placed on one year of supervised probation.

Sgt. Cull-Wright of the Harrisonburg Police Department said the sting operations, like the one in July, usually result from complaints from community residents.

Danita S. Alt, Herring’s attorney, criticized the recent busts saying that merely asking someone what they like sexually is not a solicitation to commit sodomy.

“The sodomy act itself has to occur in a public space in order for it to be prosecuted,” Alt said. “If I want to say, ‘Would you like to have sodomy?’ in the middle of a shopping mall, well, that cannot be prosecuted.”

Greg Nevins, senior staff attorney at Lambda Legal, defended a man charged with solicitation of sodomy in Virginia Beach after the Supreme Court ruling. He said that the state’s sodomy statute is moribund after the Lawrence ruling and prosecutors and law enforcers are unfairly targeting men soliciting in public for sodomy but not publicly engaging in sodomy.

“Virginia does not have a public sodomy statute,” Nevins said. “What they have done post-Lawrence is try to criminalize a request by using a law that on its face says all requests, all solicitations of sodomy are criminal. You have the right to ask for something that is an illegal act, but Virginia prosecutors are still trying to use those laws to target speech that’s protected by the First Amendment.”

But not all sodomy prosecutions have resulted in convictions. A Rockingham County Circuit Court judge dismissed sodomy solicitation charges in two separate trials last Tuesday after ruling prosecutors lacked evidence to prove the crimes, the Virginia Daily News-Record reported. The two men, Jessie Lee Morris, 59 of Grottoes, and Justin Wayne Sites, 47, of Crimora, are two of the 26 men arrested in the Harrisonburg sting operation this summer.

Alt said that at least 20 of the men indicted in July were cited for misdemeanors, including indecent exposure. She criticized police for the sting, which took place over six to eight weeks this summer, for unfairly targeting gay men.

“They [police] would never put a female officer undercover in a heterosexual bar,” Alt said. “If two young kids, a male and a female are having sex in the park, cops will usually say ‘put your clothes on and go home.’ But two men—let’s face it, we would be stupid to not think that males and females don’t go to bars and talk about sodomy.”

New law?

The Virginia State Crime Commission has asked a subcommittee in the General Assembly to further study options for a new law that brings Virginia into compliance with the Lawrence vs. Texas ruling. But a state Crime Commission spokesperson said the commission will recommend to the General Assembly next January that the state keep its old sodomy laws on the books.

House Majority Leader H. Morgan Griffith (R-Salem) told the Associated Press last week that lawmakers should not push for 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,” Griffith said. “It should be the same across the board.”

The new law will reportedly prohibit sex acts between consenting adults only when they occur in public.

Kent Willis, the executive director of the American Civil Liberties Union of Virginia said that legislators supportive of leaving the old sodomy law on the books are “political chickens” who have always been “squeamish about the subject.”

He also said that the new law, while appearing neutral on the books—targeting both homosexual and heterosexual public sex—will only be used to prosecute gay men.

“Under the old law, it was just as illegal for heterosexuals to solicit sodomy as it was for homosexuals, but the law was never enforced for heterosexuals,” Willis said.

Willis also said he was concerned about the proposed law because public sodomy would be considered a felony, while other public displays of sex are considered misdemeanors.

“They will be introducing a new law that will create a greater law that will result in a harsher punishment for something other than public sexual acts,” Willis said. “They intend to use this law against gay men and they want the penalty to be harsher but the problem, unfortunately, is that this will look like a fair and balanced law.”

Commonwealth’s Attorney Marsha Garst told the AP that 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.

Garst did not return Blade calls for comment.

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