Virginia Court Hears Sodomy Law Challenge
September 11, 2000
ROANOKE, Va. A three-judge panel of the Virginia State Court of
Appeals will consider Tuesday whether the states sodomy law is unconstitutional, the
Roanoke Times reports.
The law, which makes consensual oral sex a felony in the state, is being challenged
following the indictments of 17 men on felony charges following a crackdown on gay
cruising in a Roanoke park in November 1998.
In a series of undercover sweeps, the Roanoke Police Department cited violation of
Virginias sodomy law, even in those cases where no sexual contact occurred. Critics
and lawyers for the accused charged the police department with "selective
enforcement" and "entrapment" and publicly questioned the fairness of a
policy that levels felony charges against men seeking consensual sexual partners.
The most recent court challenge to the applicability of the law in the 1998 arrests was
rejected in May 1999. Two local judges upheld the states right to prosecute all 17
of the men.
To bring a charge of soliciting sodomy, police need only show that the offender
"commanded, entreated or otherwise attempted to persuade another person to commit a
felony." Unlike the misdemeanor charge of prostitution, there is no legal requirement
to prove a "substantial act in furtherance" (physical contact) on the offer for
The appeal rests on the argument that the prohibition of 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 State of Virginia argues that 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.
Five of the 17 men were either acquitted by juries or cleared when prosecutors dropped
some or all of the charges. The other 12 pleaded guilty and received suspended jail
sentences but were given the option of challenging the sodomy law on appeal. Nine chose to
"These are not gay rights cases," wrote Garrison 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."
[Home] [News] [Virginia]