Last edited: February 14, 2005

Virginians Court Upholds Sodomy Convictions

Roanoke Times, 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 Roanoke’s 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 state’s "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 held.

"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 court’s 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.

Tuesday’s 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 Garrison’s 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 court’s 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 panel’s 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 law’s 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 Tuesday’s 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 year’s session.

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