Last edited: December 19, 2004

Virginia Court Hears Sodomy Appeal

Attorney Attempts to Broaden Scope of Legal Arguments

Washington Blade, April 7, 2000

By Bill Roundy

A three-judge panel from the Virginia Court of Appeals heard an appeal Tuesday, April 4, that seeks to broaden the scope of arguments that can be used in a legal challenge to the constitutionality of Virginia’s sodomy law.

The challenge has been brought by 10 men who were accused of soliciting undercover police officers for sex in Roanoke’s Wasena Park. Because any act of oral or anal sex is a felony in Virginia, under the state’s Crimes Against Nature law, the men were charged with solicitation to commit a felony.

Because the sodomy law applies to everyone in Virginia, regardless of gender, sexual orientation, or marital relationship, attorney Sam Garrison said he hopes the court will allow him to argue that the law is an infringement upon the privacy rights of everyone in Virginia, including heterosexual married couples. The court may be more willing to consider the law an infringement on the privacy rights of married couples than it would if the argument is limited to the park cruising case, Garrison said.

As a general rule, people can only challenge the constitutionality of a law as it has been applied to them, and an earlier judge rejected Garrison’s request to attack the law as it applies to everyone in Virginia.

But Garrison argued before the panel that because the sodomy law infringes on the rights of people who could not seek redress through the courts, his case should be expanded to include those circumstances.

"There is a well-recognized exception to the general rule," Garrison told the Blade, "where third parties do not have an adequate forum to enforce their own rights."

For instance, Garrison said, a clinical psychologist has testified that he hesitates to advise his married clients to engage in oral sex in cases in which vaginal sex is not an option, because advising them to engage in sodomy could lead to a felony conviction.

"In what forum can [the doctor] and his clients assert that this statute infringes on their rights?" Garrison asked.

Furthermore, a Roanoke sheriff asserted during testimony that he would expect his officers to stop and warn any couple overheard planning to engage in oral sex that their conduct constituted a felony. A couple stopped in such a way would not be able to challenge the law through the courts, Garrison said.

"These Wasena Park defendants will have to go to bat for the entire state," he stated.

The panel will issue its decision on what basis the law can be challenged sometime in the next three to six weeks, Garrison said. A date will then be set for the constitutionality of the sodomy law to be argued before the Virginia Court of Appeals, the state’s second-highest court.

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