Last edited: February 14, 2005

Roanoke, VA Defendants Plead

News Planet, June 11, 1999

SUMMARY: 12 Virginia men arrested for felony solicitation have entered pleas that will let them put the state's sodomy law on trial.

Twelve of 18 men facing felony solicitation charges from a police sting in a Roanoke, Virginia park this week accepted plea bargains which allow them to challenge the state's sodomy law in appellate court. In exchange for their conditional guilty pleas, they will each be fined $1,000, given a 12-month suspended sentence, and banned from all Roanoke city parks for the next five years, although these sentences will not be imposed while their appeals are pending. The other six men, offered the same deal, have elected to face jury trials. None of the men has been charged for an illegal sex act.

Previously Roanoke had responded to public sex with misdemeanor charges such as indecency, but in November the city for the first time sought and received felony indictments against 18 men arrested in Wasena Park. The Roanoke authorities were encouraged to take the step by a Virginia Court of Appeals ruling in 1996 that rejected a claim of discrimination in the use of the felony solicitation charge against a gay man in a Virginia Beach park. The burden of proof is actually easier for solicitation of a felony than it is for the more commonly prosecuted charge of misdemeanor prostitution; that requires a "substantial act in furtherance" of the sex act, while the solicitation needs only demonstration that the individual "commanded, entreated or otherwise attempted to persuade another person to commit a felony."

Although in at least some cases it was a male undercover police officer who approached the defendant and steered the conversation to sex, the men are charged with having solicited the officers to perform sex acts which are felonies under Virginia's crimes against nature statute. That law prohibits oral and anal sex regardless of the gender of the parties involved and provides for sentences of up to 5 years imprisonment for acts between consenting adults -- but none of the 18 men has been charged with actually having sex, and it's believed to have been two years since a sodomy charge has been prosecuted in Roanoke. Attorney Sam Garrison, representing half the defendants, insists that they are facing felony charges for engaging in nothing more than conversation, although police have indicated that this may not have been true in all 18 cases. Details of the undercover officers' behavior will not be made public except in the courtroom.

Eight of the men, all clients of Garrison, will definitely be appealing their convictions on the grounds that the underlying sodomy law is an unconstitutional invasion of privacy. It's not yet known whether the others will join in that appeal. In early May, two Roanoke Circuit Judges rejected the privacy argument among other constitutional questions, as all 18 men sought to have the charges against them dismissed. Those judges cited the landmark 1986 "Bowers v. Hardwick" decision in which the U.S. Supreme Court by 5 - 4 upheld Georgia's gay-only sodomy law.

Roanoke police and prosecutors insist that they are only interested in keeping the parks family-friendly, and that they turned to the felony charges because they'd received complaints of sex acts occurring blatantly in Wasena Park. They were also disturbed that many of the men they were finding there had come from out of the area. Police say they only brought charges against subjects they felt were showing a willingness to engage in sex right there in the park, although defense attorneys do not necessarily agree.

Gay and lesbian activists and members of Parents and Friends of Lesbians and Gays protested the November indictments in a meeting with police and prosecutors, charging that the law was being selectively enforced against gay men since they were presumed to commit felonious sex, and that the police were not running similar sting operations in venues where non-gays gather. In technical terms, there aren't grounds to actually charge entrapment for the Wasena Park arrests, but juries can certainly view the circumstances as mitigating.

The case of the Roanoke 18 has encouraged veteran gay activist Frank Kameny to bring to Virginia a technique he used twenty years before to protest Washington, DC's now-defunct solicitation law: solicit everyone in sight, and particularly police, prosecutors and judges involved in cases. He started his Virginia campaign on a gay radio show in December, but was not charged (nor were there any takers for the offer).

Last month, Kameny wrote letters to the two judges who refused to dismiss the Roanoke cases, to the city's police chief and to the state attorney managing the prosecutions. Each was invited "to engage with me in an act or acts of sodomy of your choice and as defined by Section 18.2-361 of the Virginia Code, in some indisputably private place in the state of Virginia, at a time of our mutual convenience." Kameny also wrote, "This letter will be published and publicized, with intent to embarrass each of you individually and by name, and to bring you into public contempt and ridicule nationally, as well as to make a contemptible laughingstock of your benighted, barbaric, backward state of Virginia." All four officials told reporters they had received these letters but that they could not comment with the cases pending. The defense attorneys have suggested that Kameny's tactics might be more effective in the political realm than the legal.

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