Last edited: February 14, 2005

Virginia Law Says Sodomy Is Always Illegal

Brief Looks to Reinforce Sodomy Law

The Attorney General’s Office Wants to Limit a Lawsuit Brought by a Group of Gay Roanoke Men.

Roanoke Times, June 29, 2000
P. O. Box 2491, Roanoke, VA 24010
Fax: 703-981-3204

By Laurence Hammack, The Roanoke Times

Gay men who went looking for sex in a Roanoke park have no legal right to equate their actions to what married couples do behind closed doors, Virginia’s attorney general says in defending a state law that forbids consensual oral sex.

In a 29-page brief filed this week with the Virginia Court of Appeals, Assistant Attorney General John McLees urged the court to uphold the convictions of 10 men who solicited undercover police officers for sodomy in Wasena Park.

The state’s response seeks to limit the men’s constitutional attack of a law that makes consensual oral sex -- in public or in private, between homosexual or heterosexual adults -- a felony punishable by up to five years in prison.

Although critics have said the anti-sodomy law is used selectively against homosexuals, attorney Sam Garrison of Roanoke has framed the men’s appeal as a broader challenge of a law that allows government intrusion into the private lives of people of all sexual orientations.

Time and again, Garrison has pointed out that his clients were charged with soliciting a crime that is practiced with impunity by heterosexuals.

To which McLees replied: "Whatever may be the privacy rights of consenting married adults acting in private, these defendants certainly did not fit into that category, and cannot ride on the constitutional coattails of those who do."

As for married couples, McLees wrote, "their rights can be asserted in court in their own trials in the unlikely event that they are ever prosecuted for engaging in oral sex in private."

Roanoke authorities have said they have no desire to police private sex acts, but decided to use the sodomy law in response to citizen complaints about "cruising," or the seeking of gay sex in public places such as parks.

To refute Garrison’s argument, McLees relied on a U.S. Supreme Court decision that upheld such laws in 1986, based on the "presumed belief of a majority of the electorate that homosexual sodomy is immoral and unacceptable."

That 5-4 decision has since been renounced by one of the justices who voted for the majority, and legal observers say it runs counter to a national movement in which states are abolishing their sodomy laws.

While 50 states once had such laws, Virginia is one of 17 where they remain.

Regardless of what other states have done, McLees argued in his brief, Virginia should subscribe to the following principle: Just because an act is committed between two consenting adults in private, that doesn’t mean it should be legal.

"Once this right is created," he wrote, "it becomes increasingly difficult to justify criminal sanctions for any private, consensual conduct, such as fornication, adultery, prostitution or even assisted suicide."

Now that both sides have filed written arguments, they will have a chance to argue the case before a three-judge panel. A decision is expected by year’s end.

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