Last edited: March 28, 2004

Senate Delays Ruling on Sodomy

Some Fear that a Court Challenge of the Private Sex Acts Provision Could Inadvertently Invalidate a Ban on Public Sodomy.

Roanoke Times, March 9, 2004

By Kevin Miller

RICHMOND—A Senate committee voted Monday to leave Virginia’s anti-sodomy law intact despite a recent Supreme Court ruling that invalidates states’ attempts to restrict the private sex lives of adults.

Current Virginia law prohibits anal and oral sex between consenting adults—whether heterosexual or homosexual—in public and private. Lawmakers have widely conceded that the U.S. Supreme Court’s decision last year in the Lawrence v. Texas case would also nullify Virginia’s law on private sex acts.

But some lawmakers and legal analysts have warned that Virginia’s anti-sodomy law is so tightly worded that a court challenge of the private sex acts provision, which is rarely enforced, could inadvertently invalidate Virginia’s ban on public sodomy.

On Monday, the Senate Courts of Justice Committee voted to carry over until next year a bill by Del. Dave Albo, R-Fairfax County, that would have specified that public sodomy is illegal without entirely repealing the “crimes against nature” statute.

Several committee members appeared to agree with Attorney General Jerry Kilgore’s office contention that the existing law on public sodomy is legally defensible. There are several cases of public sodomy pending in the courts.

The committee vote pleased and troubled the bill’s opponents.

“I think it leaves us out of compliance with Lawrence v. Texas,” said Aimee Perron with the American Civil Liberties Union of Virginia, which supported a total repeal of Virginia’s ban on private sodomy between consenting adults. “We’re stuck with something that’s been struck down by the courts.”

However, representatives from Equality Virginia, a gay-rights organization, said Albo’s bill raised equal-protection issues because it keeps public sodomy a felony while most other nonviolent sex acts are misdemeanors.

Equality Virginia and other opponents point out that Virginia’s anti-sodomy law is rarely used against heterosexuals.

Ten men were convicted of solicitation to commit sodomy after being arrested in 1998 in Roanoke’s Wasena Park. Police set up the sting operation after neighbors had complained that gay men were looking for sexual partners in the park.

Last year, a group of 26 men were charged with soliciting sex in the back room of a Harrisonburg adult book- store. However, many of the charges were dropped after a judge ruled that the adult bookstore could be considered a private setting under the high court’s decision.

Sen. Ken Stolle, R-Virginia Beach and the committee chairman, said he is concerned that varying treatment of different sex acts violates equal-protection law.

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