Virginians Court Upholds Sodomy Convictions
November 22, 2000
By Laurence Hammack
10 Wasena Park defendants had argued the law violated privacy. Men who went looking for
sex in a park have no legal standing for that argument, said a panel.
A law that forbids consensual oral sex is not an unconstitutional violation of privacy
-- at least not when used to arrest gay men seeking sex in a park, the Virginia Court of
Appeals ruled Tuesday.
In upholding the convictions of 10 men who solicited undercover police officers in
Roanokes Wasena Park, the court turned back an effort to make Virginia the latest in
a growing number of states to abolish laws against sodomy.
The states "crimes against nature" statute makes it a felony for any
adult, regardless of sexual orientation, to have oral sex anywhere, whether in a public
park or a private bedroom.
But men who went looking for sex in a park have no legal standing to argue that the law
violates the privacy rights of all Virginians, a three-judge panel of the Court of Appeals
"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," Judge
Jere M.H. Willis wrote for the courts unanimous opinion.
Virginia is one of 17 states in which consensual oral sex is illegal. As recently as
1960, all 50 states and the District of Columbia had such laws.
While critics say the "archaic" law is used unfairly against homosexuals, the
10 Wasena Park defendants framed their challenge on the broader argument that the statute
empowers the government to invade the privacy of all Virginians.
Tuesdays opinion left unanswered a question posed by Sam Garrison, a Roanoke
attorney who represented the men: What would the court do if a married couple or two
consenting adults acting in private were charged under the law?
Willis mentioned such a scenario only in the context of ruling that Garrisons
clients could not challenge the law as it applies to private sex acts. If someone were to
be charged with soliciting or practicing oral sex behind closed doors, the opinion said,
he could "assert, in his defense, those circumstances and that claim."
Roanoke police and prosecutors have said earlier they have no intention of creating
such a case. On the rare occasions when authorities use the sodomy law, they said, it is
to discourage problems such as public sex acts and "cruising" in Wasena Park.
Two years ago, police posted undercover officers in the park after residents complained
that men seeking sex partners were turning a place for wholesome outdoor activity into an
unsavory pickup spot.
"Parents have a right to expect their children can play in public parks without
being confronted by solicitation or performance of illicit acts," said David Botkins,
spokesman for Attorney General Mark Earley.
All 18 men charged in the operation with soliciting sodomy expressed a willingness to
have sex with the officer in the park, the courts opinion noted, and some of them
exposed themselves or fondled the officer in the process.
Of 12 men who pleaded guilty and took suspended jail sentences, nine accepted an
opportunity to challenge the law on appeal. A 10th defendant involved in the appeal was
convicted by a jury and sentenced to 60 days in jail.
Three defendants were acquitted by juries after arguing that they only responded to
flirtatious behavior by undercover police officers. Prosecutors dropped charges in the
remaining two cases in light of the jury acquittals.
Garrison was out of the office Tuesday and had not seen the opinion. Although he could
ask the full Court of Appeals to reconsider the panels finding, Garrison said he
needed to study the opinion and consult with his clients before commenting further.
While most of the 17-page opinion dealt with the privacy issue, the court quickly
dispensed with two other arguments made by Garrison -- that the laws potential
five-year sentence amounts to cruel and unusual punishment, and that its religious origins
violate the separation of church and state.
Organizations such as Virginians for Justice and the American Civil Liberties Union
were hoping the court would strike down the anti-sodomy law. They said police use the law
unfairly to punish behavior by gays that would never be questioned among heterosexuals.
With Tuesdays decision, gay rights advocates may have to shift their hopes to the
legislature. Earlier this year, a bill that would have reduced the crime of oral sex from
a felony to a misdemeanor was passed by the House of Delegates after making it out of a
committee for the first time in years.
The legislation died in a Senate committee, but is expected to be introduced again at
next years session.
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