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
Email: response@roanoke.infi.net
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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