Last edited: February 14, 2005

Virginia Court Hears Sodomy Law Challenge

Datalounge, September 11, 2000

ROANOKE, Va. — A three-judge panel of the Virginia State Court of Appeals will consider Tuesday whether the state’s 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 Virginia’s 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 state’s 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 sex.

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 do so.

"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."

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