Last edited: December 08, 2004

Virginia’s Sodomy Ban Is OK With Most Candidates

Only 17 States Have Such Statutes

Roanoke Times, October 27, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

Even if a person never is arrested, the anti-sodomy law still can be used against him or her, such as in child custody cases.

By Laurence Hammack, The Roanoke Times

A state law that makes consensual oral sex a felony was used to discriminate against homosexuals, critics say, with the indictments of 18 gay men accused of soliciting sodomy in a Roanoke park.

Not so, authorities counter. In responding to allegations of selective enforcement, a police lieutenant testified earlier this year that if officers had evidence that two heterosexuals were going to have oral sex in private, they would be warned about the law.

Either way, the law applies to more than what consenting adults do in their homes. It also can be used to arrest people for merely talking about oral sex, as that can amount to solicitation of a felony.

So what’s wrong with Virginia’s anti-sodomy law?

Nothing to justify taking it off the books, say a large majority of General Assembly candidates from the Roanoke and New River alleys.

Of 21 candidates questioned, only two – Del. Jim Shuler, D-Blacksburg, and Alexi Sadjadi, an independent challenger to Del. Clifton "Chip" Woodrum, D-Roanoke – said the law should be completely repealed.

"All laws must be fair and equitable to all – and enforceable," Shuler said. Several candidates said the law should be amended to criminalize only homosexual behavior.

"I am against any type of lesbian" or gay activity, said Donald "Whitey" Taylor, an independent candidate for the House of Delegates from Franklin County who favors selective enforcement of the law to protect "whatever happens in the bedroom between a married couple."

As written, Virginia’s "crimes against nature" law applies to all consenting adults, whether heterosexual or homosexual, who engage in oral sex in public or in private. A conviction could result in up to five years in prison, a fine of $2,500, loss of the right to vote, and all the other impediments that come with a felony record.

Purchasing the services of a prostitute, by comparison, is a misdemeanor.

Although seldom enforced, the anti-sodomy law makes felons out of most of the state’s population. Roanoke sex therapist Charles Holland estimates that 90 percent to 95 percent of people he’s asked say they engage in oral sex.

Laws that prohibit the practice "tend to be a laughingstock in the populace of even the most conservative states," said Stephen Scarborough, staff attorney for the Lambda Legal Defense and Education Fund, a gay-rights organization.

Yet Virginia legislators are reluctant to do anything with the centuries-old law except let it get older.

You won’t hear candidates talking about the issue unless asked, and bills to repeal the law historically have died quiet deaths of political neglect.

It seems that no one wants his or her vote reduced to a campaign sound bite about the legislator "who voted to legalize sodomy," and some are wary of even being associated with a topic seen by many as a gay-rights issue.

Sen. Mary Margaret Whipple, D-Arlington, recalls the awkward hush that fell over a Senate subcommittee when it came time to discuss her bill that would have made consensual sodomy legal for adults.

"It was uncanny," Whipple said of the sudden silence among lawmakers, a group not known for reticence. After a few minutes, someone suggested the committee move on to the next matter. The bill was dead.

Across the country, though, a growing number of states are abolishing their sodomy laws. In the 1960s, all 50 states forbade oral sex. Today, 17 states still have the law, including five that limit its applicability to homosexuals, according to the Lambda defense fund.

While sodomy laws have been defeated mostly in the courts – falling victim to the argument that government has no business regulating private sexual behavior between adults – some legislatures are joining the movement by voting to repeal their statutes.

Critics say the laws against sodomy are ripe for selective enforcement.

"If you have Bobby and Susie necking on lover’s lane and a police officer sees them, he’ll tap his nightstick on the window and say "You two go on home,’" Scarborough said. "But if it’s a same-sex couple doing the same thing, then it’s cause for an arrest.

"So there’s definitely discriminatory enforcement going on."

In Roanoke, nearly all of the soliciting for sodomy charges brought in recent years have been against homosexual men.

Authorities say they simply are responding to citizen complaints about blatant sex acts in public places known for gay cruising, the practice of frequenting certain spots in search of sex partners.

As long as legislators see fit to keep the state’s sodomy laws on the books, police and prosecutors say, it’s fair to use the law to discourage what everyone agrees is unacceptable conduct – sex acts in public places.

The Police Department’s operation, which led to the arrests of 18 men accused of soliciting sodomy from undercover officers hanging out in Wasena Park, has had mixed results in court.

Although testimony has shown that some men exposed themselves and made overt sexual actions while offering to commit sodomy, others did no more than talk in vague terms about sex with undercover officers who aggressively pursued the topic.

Twelve of the men elected to plead guilty with the understanding that they can appeal their cases on grounds that the state’s sodomy law is an unconstitutional invasion of privacy.

Of the contested cases, one man was convicted by a jury and given 60 days in jail. Two were acquitted by juries, and two more had their charges dropped by prosecutors following the earlier acquittals. A final defendant still faces a jury trial.

The men who pleaded not guilty questioned the actions of pushy undercover police officers, who they contended did most of the soliciting. The defendants also raised the issue of selective enforcement.

"This time it’s the gays. Maybe next time it will be somebody else, because this law could be used to prosecute 90 percent of the population," defense attorney Gary Lumsden told a jury in September. The jury acquitted Lumsden’s client after deliberating just 15 minutes.

In declining to back efforts to repeal the sodomy law, some legislators say the real issue is not what the law says, but how it’s used.

"Prosecutors rarely, if ever, bring such charges for purely private conduct between consenting adults," said Sen. John Edwards, D-Roanoke. "They should exercise fair and reasonable discretion and not bring charges selectively or to target a particular population."

Yet, in recent years, the law has been used more frequently as a weapon against gay cruising. Operations similar to the one in Roanoke have led to arrests in Richmond, Harrisonburg, Charlottesville and Virginia Beach.

Even if a person is never arrested, the anti-sodomy law can be used against him or her.

For example, Virginia judges have denied child custody to homosexuals on the theory they engaged in felonious activity and thus were unfit parents.

In Florida, Georgia and Texas, sodomy laws have been used to deny employment to gay job applicants. And in Alabama, a university gay and lesbian support group was forced to disband because it was seen as encouraging illegal behavior.

Even events in the nation’s capital have been shaped by the issue, despite the fact that consensual sodomy is perfectly legal in the District of Columbia.

Joseph McClung, an independent candidate for the House of Delegates seat that covers Radford, Pulaski County and part of Giles County, declined to comment about his views on the state’s sodomy law.

Instead, he said, the question should be put to the state’s congressional representatives, especially those who voted not to punish President Clinton for acts that would have been a crime in Virginia.

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