Last edited: February 14, 2005

State Says Law Must Be Viewed in Context of Curbing ‘Cruising’

Court Hears Debate Over Challenging Sodomy Law

The Roanoke Times, September 13, 2000
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

The attorney for 10 men arrested at Wasena Park said the law is a First Amendment violation.

By Laurence Hammack, The Roanoke Times

Standing before an appellate court to attack Virginia’s sodomy law, attorney Sam Garrison spent most of his time Tuesday talking about standing.

That is, the question of whether his clients, 10 gay men convicted of soliciting undercover police officers for sodomy in a Roanoke park, have the legal standing to challenge a law that makes consensual oral sex a felony.

During a hearing before a three-judge panel of the Virginia Court of Appeals, arguments from attorneys and questions from the judges focused on the issue of whether the appellants can argue the law is an unconstitutional invasion of not just their privacy rights, but those of all adults who engage in oral sex.

The court is being asked to strike down a law that Garrison said is "broken a million times a night in this state."

In Virginia, oral sex between adults — whether homosexual or heterosexual, in public or in private — is considered a "crime against nature" that carries up to five years in prison.

A decision is expected by year’s end.

Asked by Judge Larry Elder if the state concedes it would be unconstitutional to enforce the law against married couples who act in private, Senior Assistant Attorney General John McLees replied that Elder’s question was not before the court.

Instead, he said, the court must consider the law in the context of its use: As an effort to deter "cruising" by homosexual men who authorities said often engaged in public sex acts in Wasena Park.

"What relationship do these homosexual cruisers have with married people acting in private? None. None whatsoever," McLees said.

Garrison countered that the law gives his clients standing if they can show that the sodomy law they were charged under clearly violates the First Amendment rights of others. Garrison cited two examples:

A police lieutenant testified last year that if his officers heard two adults discussing their intentions to have oral sex in private, police would be duty-bound to intervene with a warning that they would be breaking the law.

A sex therapist testified that he often advises his patients to engage in the healthy and normal practice of oral sex, although he added that a law that makes such advice tantamount to soliciting a felony has a potentially chilling effect.

Both statements are included in the transcript of a daylong hearing that Garrison urged the court to consider.

"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," Garrison said.

Not only do the appellants lack standing, McLees said, the issue they raise is one of public morality that is better left to the General Assembly. Virginia and 16 other states forbid oral sex; such laws have been either repealed or struck down by courts in the remaining states.

If the state’s law is "to change with the changing times, it must be the legislature to make that decision because they are the elected representatives of the people," McLees said.

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