Virginia Continues to Prosecute Gay Men for Sodomy
Lawmakers expected to pursue new ban public sex
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
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
“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
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
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
“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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