Last edited: January 01, 2005

Virginia Sodomy Law Challenged

PlanetOut, September 15, 2000

SUMMARY: Gay men caught in an oral sex solicitation sting are in a Virginia appeals court to fight the discriminatory application of a law that’s broken "a million times a night."

The Virginia Court of Appeals on September 12 heard oral arguments in a challenge to the state’s venerable "crimes against nature" law, which punishes oral sex -- or "soliciting" it -- as a felony punishable by five years imprisonment, even if committed in private between consenting adults, even if they’re married. But activists believe the law is selectively enforced against gay men, and the case at hand is a 1998 police "sting" operation in Roanoke’s Wasena Park, with ten of the eighteen men arrested there acting as appellants. A ruling is expected before the year ends.

Despite the Appeals Court’s willingness to hear the case -- and it’s rejected similar challenges in the past -- the men’s attorney Sam Garrison had to devote much of the hearing to establishing their standing to challenge the law. He did that based on violation of First Amendment free speech rights, supported with a police officer’s testimony that he would be duty-bound to arrest two adults he overheard arranging to go engage in oral sex in private. But the key to Garrison’s approach is his assertion that, "The evidence in this case, which the court cannot ignore, is replete with statements by people -- men, women, married, unmarried, straight, gay -- that they engage in this conduct." He charged that the law is "broken a million times a night in this state."

One member of the three-judge panel specifically asked the state’s Senior Assistant Attorney General John McLees, who’s tasked with defending the law, if the state were willing to concede it would be unconstitutional to use the charge against a married couple acting in private. But McLees sidestepped the question, responding that it was not the issue before the court. He urged the judges to consider the law in the context it had been used, to deter gay "cruising" in the park, and said, "What relationship do these homosexual cruisers have with married people acting in private? None. None whatsoever." McLees called the issue one of public morality which the legislature rather than the court should decide to let stand or amend.

The legislature has shown great reluctance to change the law. A bill this year by Delegate Karen Darner (D-Arlington) simply to reduce acts between consenting adults from felonies to misdemeanors without jail sentences advanced farther than any of her previous attempts to repeal the law. Felony convictions mean loss of voting rights and disqualification from many kinds of professional credentials, while misdemeanors do not. Darner’s proposal won a 50 - 49 vote in the House of Delegates because one opposing member was absent due to illness, but her bill was finally killed by the state Senate Courts and Justice Committee vote in February (see PlanetOut News of February 24). A majority of that committee was unmoved by testimony including that of a wheelchair-bound person whose disabilities make non-felonious intimacy all but impossible.

Meanwhile, the men caught "commanding, entreating or attempting to persuade" undercover police in Wasena Park to commit the felonious "crime against nature" are not serving five-year sentences. The first five cases tried ended in one conviction with a sentence of sixty days. The men appearing before the Court of Appeals plea-bargained, pleading guilty with the understanding that their sentences would be suspended pending the appeal (see PlanetOut News of June 10, 1999). Charges were dropped in several cases. Before the Wasena sting, Roanoke authorities had used misdemeanor charges against cruisers, rather than the felony charge of soliciting a felony (oral sex).

In 1996, the Virginia Court of Appeals rejected a gay man’s claim of discrimination after he was charged with soliciting a felony in a park in Virginia Beach.

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