Last edited: December 08, 2004

Virginia Sodomy Sting Challenge Fails

PlanetOut News, November 27, 2000

SUMMARY: A state appeals court threw out the case of ten gay men busted in a Roanoke park because it found their privacy rights weren’t at stake.

A three-judge panel of the Virginia Court of Appeals on November 21 unanimously rejected a constitutional challenge to the state’s 207-year-old "crimes against nature" law, which makes oral or anal intercourse between consenting adults a felony punishable by up to five years’ imprisonment, regardless of the gender of the parties involved and whether the acts are in public or private. The challenge was brought by ten of eighteen men arrested for solicitation of oral sex in a police sting operation in Roanoke’s Wasena Park two years ago, with the support of friend-of-the-court briefs filed by the American Civil Liberties Union (ACLU) Foundation and ACLU of Virginia, the Lambda Legal Defense and Education Fund, the Liberty Project, and the Log Cabin Republican Club of Northern Virginia. It’s not yet been determined if a further appeal will be filed.

Sam Garrison, representing the men arrested in the park, challenged the law on three grounds. The most significant was that it violated Virginia’s constitutional right to privacy. But the court agreed with the state Attorney General’s office that the appeal could deal only with the cases of the men before it, who according to police testimony had agreed to sex acts in the park, so privacy rights could not be invoked. Judge Jere Willis, Junior wrote for the court that, "Their solicitations were made to strangers in public parks. Whatever may be the constitutional privacy rights of one who engages in sodomy in private, those rights do not attach to one who does the same thing in public." As for the witnesses Garrison presented to testify to the near-universality of the practice of oral sex, Willis dismissed them writing, "Contrary to the appellants’ arguments, sex therapists, married persons, and consenting adults engaging privately in sexual conduct do not stand to lose by the outcome of this case. ... Any such person proposing or engaging in sodomy under circumstances supporting a claim of privacy may, upon discovery and accusation, assert, in his defense, those circumstances and that claim." Roanoke law enforcement officials testified they had no intention of enforcing the law for private acts.

A second argument held that the five year sentence for "crimes against nature" — or their solicitation — constitutes "cruel and unusual punishment" in violation of both the state and federal constitutions, because it is much harsher than Virginia’s penalties for adultery or fornication (or their solicitation). For instance, soliciting or performing heterosexual intercourse in exchange for money is a misdemeanor punishable by only six months in jail. However the appeals court cited a state precedent that limits the "cruel and unusual" standard to "prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience." Willis wrote for the appeals court, "We find our consciences shocked neither by appellants’ sentences [one year imprisonment, $1,000 fine and a five-year ban from the park, all of which have been suspended pending the appeal] nor by the five-year maximum sentence provided by the statute."

Elvis Gene DePriest, et al. v. Commonwealth of Virginia, 2000

[Home] [News] [Virginia]