Last edited: December 19, 2004

10 Men Appealed Convictions in Wasena Park Cases

Sodomy Appeals Hit Court

Roanoke Times, September 10, 2000
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

The men may face a tough battle in court because they are seeking to invoke their constitutional right to privacy for acts that were committed in public.

By Laurence Hammack, The Roanoke Times

Victor Varin goes to work every day, pays his taxes, votes in every election and generally considers himself a productive citizen.

The state of Virginia considers him a scofflaw.

As a gay man, Varin’s lifestyle puts him in direct violation of Section 18.2-361, a state law that makes oral sex between consenting adults a felony punishable by up to five years in prison.

For years, the law was largely ignored by citizens who broke it regularly and by Roanoke police. Varin’s arrest — along with those of 17 other homosexual men who went looking for sex in Wasena Park two years ago — changed all that.

The arrests, part of a police operation intended to discourage gay "cruisers" from using the park as a pickup spot, became the bedrock for a constitutional challenge to Virginia’s sodomy law that could have statewide implications.

A three-judge panel of the state’s Court of Appeals will hear the case Tuesday.

The appellants’ argument: A law that prohibits consensual oral sex by both homosexuals and heterosexuals, in public and in private, is a violation of privacy rights guaranteed in the state constitution.

"The statute is perverse in being so arrogant as to presume to tell adults what they can and cannot do in their bedrooms," said Sam Garrison, a Roanoke attorney who represents 10 men convicted of soliciting undercover police officers for sodomy.

The counter argument: People who seek sex in a public park forfeit their right to privacy, and the anti-sodomy law should remain on the books as a deterrent against such behavior.

"Whatever may be the privacy rights of consenting married adults acting in private, these defendants certainly do not fit into that category, and cannot ride on the constitutional coattails of those who do," Senior Assistant Attorney General John McLees wrote in briefs filed with the court.

A decision is months away, and will not involve Varin directly. He was one of five men either acquitted by juries or cleared when prosecutors decided to drop some charges in light of the jury acquittals.

But Varin and others who believe the state views their sexual persuasion as criminal will be closely watching the appeal, filed by nine men who pleaded guilty and a 10th who was convicted by a jury in Roanoke Circuit Court.

Police "put homosexuality in the same category as prostitution and drug abuse," Varin said. "That’s how they look at it."

Although Varin, 55, said his acquittal restored some of his faith in the court system, he is still troubled by an ordeal that cost him a job and put him through a year of anxiety.

"I always try to do the right thing and be a good, productive person," he said. "It was so hard for me to believe that in a supposedly free country, this was happening to me."

On the afternoon of Oct. 13, 1998, Varin was circling Wasena Park in his green pickup truck. He was new to Roanoke, having moved from Philadelphia six months earlier, and had recently learned the park was a common meeting place for gay men.

If a casual conversation led to casual sex, Varin had a spot in mind — a small ravine in a wooded area that could be reached by following the railroad tracks about 100 yards outside the park.

Varin thought he had found what he was looking for in a man wearing blue jeans and a knit shirt who had been hanging around a parking area for some time. Unknown to Varin at the time, the man was an undercover detective stationed in the park that day.

The detective made eye contact with Varin as he drove past, smiled and then used a seductive tone of voice when they began to speak, Varin said. "He played the game perfectly."

As Varin and the officer began to walk down the railroad tracks, they were joined by a third man. As Varin turned away, a jury was later told, the third man proposed oral sex on the detective and grabbed him in the groin.

At that point, the detective walked into the woods where Varin was standing, told him what the man had just suggested, and asked him what he had in mind.

"The same damn thing," Varin replied as he grabbed the detective in the groin. That’s when he learned that he had just propositioned the law for an act that carries up to five years in prison.

"I was angry," Varin said last week. "I wanted to say, why are you out here wasting my taxes to harass me?"

But it was the citizens of Roanoke who were being harassed by blatant cruising and public sex acts in Wasena Park, police and prosecutors said after Varin and 17 other men were charged with soliciting undercover officers to commit sodomy.

Some of the men were exposing themselves or masturbating when they approached officers with offers of sex, authorities said.

"The only agenda here is to drive public sex out of public parks, whether it’s heterosexual or homosexual activity," then-Assistant Commonwealth’s Attorney Dennis Nagel said at the time.

When word got out that Varin had been indicted by a grand jury, he was placed on unpaid leave from his job as a counselor at Youth Haven, a home for troubled boys. Three months later, he said, he was terminated because of the "length of his legal difficulties."

Varin suspects that his departure was based on the belief that a homosexual should not be working with children, "even though I’ve done it half my life and there were never any complaints."

Later, when his name was mentioned in the newspaper, someone clipped the article out and put it up on a bulletin board at Catawba Hospital, where Varin was working a second job as a night attendant.

He was allowed to keep that job, but had to take a week off before his trial in December to deal with the stress. The night before, he broke down and cried. "I just couldn’t take it," he said.

Almost as bad as the risk of prison to Varin was the loss of voting rights that would come with a felony conviction.

"I’ve never missed an election, and to have people say to me, ‘you can’t vote because you are a homosexual’ ... It still floors me to think about it now," he said.

Varin’s fears were quelled by the jury, which deliberated less than half an hour before finding him not guilty.

It was the last of the 18 Wasena Park cases to go to trial. Earlier in the year, 12 men pleaded guilty and received suspended jail sentences, but were given the option of challenging the sodomy law on appeal. Nine chose to do so.

Over the next few months, juries acquitted two defendants in trials that, much like Varin’s, portrayed the undercover police officers as soliciting sex more aggressively than their targets. Based on those verdicts, prosecutors dropped charges against two other men.

Ronald Waller, the only defendant convicted by a jury, was sentenced to 60 days in jail. His appeal has been consolidated with that of the nine men who pleaded guilty.

Although it will not be an issue on appeal, a woman who served on Waller’s jury now says that she was pressured to go along with a majority decision that she believes was based on prejudice against homosexuals.

"I think the homophobia issue played a major part in the decision," Margie Twigg said.

Twigg said she wanted to acquit Waller, but eventually gave in to a majority during a heated discussion. She still regrets her decision.

"I felt there was an injustice done that day, and I feel very guilty about it."

When a three-judge panel of the Court of Appeals convenes Tuesday in the Roanoke County courthouse, it will hear arguments that are being made more and more often across the country.

In 1961, all 50 states had laws against consensual sodomy. Today, such laws remain on the books only in Virginia and 16 other states, according to the Lambda Legal Defense and Education Fund, a gay-rights legal group.

"As the years pass, these laws look sillier and sillier," said Stephen Scarborough, a staff attorney in the group’s Atlanta office.

But Virginia’s appellate courts may not be inclined to change the state’s laws just because similar ones have been declared unconstitutional by the courts or repealed by the legislatures in other states.

"My hunch is they would be slow to say that we see in other states that some courts are beginning to question sodomy laws," said A.E. Dick Howard, a constitutional scholar and professor of law at the University of Virginia.

As Howard sees it, Garrison’s clients face a tough battle in the Court of Appeals because they are seeking to invoke their constitutional right to privacy for acts that were committed in public.

"I think it’s going to be tough sledding for them," he said. Howard was no more optimistic about the other grounds of appeal. Among them: That the potential five-year sentence for sodomy amounts to cruel and unusual punishment, and that the law violates the separation of church and state because it is based on religious beliefs that sodomy is immoral.

So far, arguments in the case have been devoted mostly to the issue of privacy, and whether the 10 defendants can raise it.

In hopes of avoiding the legal pitfall of standing — the question of whether his clients can attack the sodomy law as it applies not just to them, but to everyone — Garrison devoted a daylong evidentiary hearing last year to calling witnesses other than gay "cruisers" to testify that the law affected them as well.

The witnesses included a sex therapist who said he often encourages patients with physical or other difficulties to engage in the "natural and normal" practice of oral sex — even though doing so could be construed as soliciting a felony. Other witnesses testified that they engaged in oral sex in private, but were either troubled or merely annoyed that such activity was illegal.

Garrison will ask the Court of Appeals to consider that testimony.

"These are not ‘gay rights’ cases," he wrote in a brief filed with the court. "They involve instead the fundamental rights of 4 1/2 million adult Virginians — male, female, married, unmarried, straight, gay, whatever — to be free from the threat of needless, pointless and unjustified government intrusion into areas where they have a reasonable expectation of privacy."

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