Last edited: January 01, 2005

Police Use Sodomy Laws in Prostitution Sting

Alexandria Journal, July 20, 1998
6408 Edsall Road, Alexandria, VA 22312

By Dominic Perella, Associated Press

CHARLOTTESVILLE - Men seeking prostitutes for oral sex here are being charged with a felony under Virginia’s 206-year-old law against sodomy, while asking a prostitute for intercourse is only a misdemeanor.

An American Civil Liberties Union official said the crackdown means a varying severity of punishment for similar crimes.

"What an astonishing twist," said Kent Willis, the ACLU’s Virginia director. "The law should be more rational."

In early May, Charlottesville police seeking to target a growing enclave of downtown prostitution sent in undercover officers, who succeeded in busting three men trying to pick up prostitutes.

One of the men arrested had allegedly tried to pay for sexual intercourse. He was charged with a misdemeanor, which carries up to a year in jail upon conviction.

The other two men allegedly requested oral sex. They were charged with soliciting another person to commit a felony - namely, sodomy, which is illegal in Virginia and 19 other states. Soliciting a felony also is a felony, and it carries one to five years in prison upon conviction.

The sodomy law - which makes oral sex illegal even if it is consensual and the participants are married - is a rarely used relic of the 18th century blue laws. But it remains on the books, and police occasionally drag it out and dust it off, usually for use against homosexuals, Willis said.

Apart from prostitutes, there are no recorded cases of any heterosexuals being prosecuted for consensual oral sex in the history of the law, lawyers said. Its most notable recent use may have been in the Sharon Bottoms custody dispute: A judge refused a mother custody of her child because the woman is a lesbian.

No statistics are available on how often the sodomy law has been used to elevate solicitation of prostitutes to a felony, but the idea isn’t new. Charlottesville officials say it was suggested to them by police in Richmond and elsewhere in the state.

"Solicitation of prostitution is a misdemeanor. That’s what it clearly is meant to be in Virginia, and that’s what it is almost everywhere," Willis said. "Yet because of the sodomy statute, you can twist legislative intent. ... It almost makes a joke of the law."

Charlottesville Police Lt. Chip Harding said there’s nothing unusual about prosecutors seeking the maximum possible charge for a crime.

"We use whatever’s available to us," Harding said. "I think state law allows us to do that. If somebody thinks it’s unfair, they can take it up with the General Assembly."

Willis said any appeal to the General Assembly would likely be fruitless.

"Legislators are afraid to touch it for political reasons," he said. "They’re afraid that they’ll appear to be pro-gay and lesbian."

Similar laws have set off struggles in state assemblies nationwide since the 1960s. About 30 states have replaced their sodomy laws. Of the rest, Virginia and 13 others still have sodomy laws that cover homosexual and heterosexual sodomy, and six other states have sodomy laws banning homosexual sodomy only.

The first man charged with felony solicitation in Charlottesville, Robert Lee Gentry Sr., 36, cut a deal with prosecutors and ended up pleading guilty to a misdemeanor. Harding pointed to that fact as evidence that different charges don’t mean unequal justice.

"Usually the courts end up working it out fairly," he said.

But Willis said people should be able to count on the letter of the law itself to be fair.

"If prosecutors didn’t have this [statute], they couldn’t use it," he said. "That’s what it comes down to. The problem is that it does exist."

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