Last edited: February 14, 2005

Virginia Panel Mulls Sodomy

Appellate Court Accepts Case

Washington Blade, December 24, 1999

By Bill Roundy

Virginians for Justice's Shirley Lesser: "We have long since thought that getting rid of this unjust law was essential and that it had to be pursued through several strategies."

The Virginia Court of Appeals announced last week that it will hear a case that could lead to the abolition of the state's sodomy law.

The state's second-highest court released a certificate of appeal on Dec. 13, stating that it will hear a case that challenges the constitutionality of the state's Crimes Against Nature law, which makes any act of oral or anal sex a felony in Virginia.

The case was brought by nine men charged with solicitation to commit a felony (sodomy), and their case asserts that the underlying statute, the sodomy law, unconstitutionally violates their right to privacy implicit in the state constitution.

"It's a roundabout way of challenging the law, but it works," said Shirley Lesser, executive director of Virginians for Justice, a group that lobbies for Gay civil rights. "We have long since thought that getting rid of this unjust law was essential and that it had to be pursued through several strategies."

The court will consider several other constitutional aspects of the law, including whether it violates the U.S. and state constitutional prohibitions against cruel and unusual punishments, due to its potential five-year prison sentence. The statute may also unconstitutionally promote an "establishment of religion" by elevating biblical prohibitions against sodomy to the status of law, according to Sam Garrison, the openly Gay attorney who represents the nine men in the case.

The court will also address whether the statute can "be reformed judicially by construing the constitutionality out of it." In other words, Garrison said, the court could choose to reinterpret the sodomy statute so that it does not apply to married couples, or so that it only prohibits same-sex acts of sodomy.

"Our goal is that they not do that," Garrison told the Blade. "The optimum way would be for them to look at it ... on its face. As it reads, it applies to all people in any situation." The court could then declare the entire statute unconstitutional, Garrison said.

The Court of Appeals will hear oral arguments sometime in the spring of 2000, according to a clerk for the court, although no date for the hearing has been set.

It is unclear whether the case will be considered by a three-judge panel, as is usual in most criminal appeals, according to Garrison, or by the court as a whole. Garrison noted that he has been asked to submit 17 copies of his petition for appeal to the court, enough for every justice of the court plus several law clerks.

"They probably wouldn't ask me to do that if they were just going to rule that these guys don't have standing," he said.

The case arises from a series of arrests in Roanoke, Va., during October and November 1998, when police arrested 18 men for soliciting them to commit a felony. Attorneys for all 18 men moved to dismiss the charges on the grounds that the sodomy law is an unconstitutional invasion of privacy. But those motions were dismissed by two Roanoke judges in April. Each judge ruled that because the solicitation took place in a public park, the men could have no expectation of privacy. Twelve men agreed to a plea bargain with the commonwealth's attorney, in which they pleaded guilty to solicitation and received a $1,000 fine and a suspended sentence, while still retaining the ability to appeal the constitutionality of the law. Payment has been suspended until the appeal is resolved.

Three of the men who agreed to the plea bargain have subsequently decided not to continue with the appeal, Garrison said, due to privacy concerns.

Six other men pleaded not guilty to the charges; one was found guilty, three were acquitted, and charges against the remaining two defendants were dropped.

The man who was convicted of solicitation has also filed an appeal challenging the constitutionality of the sodomy law, and his case will likely be added to the other nine, Garrison said.

Lesser said that while the outcome of the court case could have a major effect on VJ's strategies in the future, in the upcoming session of the Virginia General Assembly, which convenes Jan. 12, the organization will continue its legislative efforts to repeal the sodomy law.

"As for today, we still have a sodomy law, and we will be working to get rid of it," she said. The Court of Appeals will probably not be finished with the appeals process until well after the legislative session is finished for the year, she noted.

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