Last edited: February 14, 2005

Most in Virginia Oppose Law

Statewide Gay Civil Rights Group Hopes to Use Data to Push Legislation

Washington Blade, February 2, 2001

By Bill Roundy

A poll commissioned by the Gay civil rights group Virginians for Justice confirms what activists have been saying for years: Most Virginia residents think that the state’s sodomy law is unfair, and they believe that the law should be eliminated.

Virginians for Justice hope to use the polling data in their efforts to repeal Virginia’s Crimes Against Nature law, which makes a felony of any act of oral or anal sex in the state, public or private. Repeal efforts in the legislature have already been defeated this session, but Virginians for Justice plans to launch a public education campaign in order to make the Crimes Against Nature law an issue in November’s elections.

"I’m very excited about the poll," said Shirley Lesser, executive director of Virginians for Justice. "It proves what we’ve known intuitively, but we had to have a separate, impartial party do the poll."

"We were surprised by how right we were," she added.

The poll showed that 81.7 percent of respondents believe that it should not be illegal for married couples to have oral sex in the privacy of their own home, and 65.2 percent said they favored repealing the Crimes Against Nature law. Only 20 percent said that the law should not be repealed, and 14.8 percent were undecided on the issue.

The survey, conducted by Rasmussen Research, an independent polling agency based in North Carolina, was created to judge knowledge of and attitudes towards the Crimes Against Nature law. Conducted between Jan. 16 and 18, the poll surveyed 965 likely voters in all parts of Virginia. The poll has a margin of error of plus or minus 3 percent.

"We went to great lengths to have an independent polling company do the survey," said David Scoven, a lobbyist for Virginians for Justice. "Rasmussen is not a liberal organization. We didn’t want to be accused of fixing the poll or buying the results."

While some legislators have privately told Scoven that they would like to support sodomy law reform, but that they fear a conservative backlash from their constituents, Virginians for Justice hopes that the poll results will show that fear is unfounded.

"One of the reasons we don’t have larger support [in the General Assembly] is that Republicans and conservative Democrats don’t realize how deeply their constituents feel about this issue, and how wide support for repeal is," said Lesser.

Thirty-six percent of respondents indicated that they would be more likely to vote for a legislator who supported repeal, and 46 percent said that the issue would have no impact on their votes. Only 11 percent of respondents said that they would be less likely to vote for a candidate who supported repeal.

Support for repeal of the law is bipartisan, with 61.4 percent of Republicans believing that the Crimes Against Nature law should be eliminated, and 61.5 percent of Democrats feeling the same way; 75.8 percent of other party members said that the law should be eliminated.

Young people, between 18 and 29 years old, are more likely to favor repeal than any other group, with resistance increasing with each older age category. Among younger people, 82.7 percent said that the Crimes Against Nature law should be eliminated, with only 34.7 percent of respondents over the age of 65 favoring the law’s repeal.

Even in categories where Virginians for Justice expected to have very little support, a majority of Virginians believed that consensual, private sexual activity should be legal: 47.5 percent of respondents said that oral sex between men should not be illegal, and only 44.1 percent said it should be illegal (the rest were "not sure").

One amusing discrepancy appeared in attitudes reported by men and women. Among male respondents, 48.8 percent said that oral sex between two men should be illegal, but only 26 percent of men felt that oral sex between two women should be prohibited. Women showed no significant difference in their opposition to either category — roughly 40 percent felt it should be illegal for both men and women, while 50 percent of women said it should not be illegal for either. The remainder were undecided.

One percent of respondents identified as Gay, 3.4 percent as bisexual, and 92.8 percent as straight, and 2.7 percent said they were "not sure" of their sexual orientation.

Unsurprisingly, Gay and bisexual people demonstrated more knowledge of and opposition to the Crimes Against Nature law than heterosexuals. Only 46 percent of straight-identified respondents knew that oral sex between married people is illegal in Virginia, while 72.4 percent of Gay people were aware of the law.

The survey did not ask about attitudes toward anal sex, even though the Crimes Against Nature law prohibits it as well.

Lesser said that the group had decided to focus on oral sex, without giving any further explanation. However, she did note that legislators have said that they are more likely to remove penalties for oral sex than they are for anal sex.

Unfortunately, the encouraging news from the poll arrived too late to salvage sodomy law reform bills in the current session of the General Assembly.

A bill that sought to reduce the penalty for violating the Crimes Against Nature statute from a felony to a misdemeanor, HB 2309, was soundly defeated on Jan. 29 by the conservative House Committee on Militia and Police, which voted 16-4 to pass the bill by indefinitely, postponing consideration of the bill until after the session is over.

Another bill, HB 2632, sponsored by Del. Brian Moran (D-Alexandria), would have repealed the Crimes Against Nature provisions relating to consenting adults, had been defeated on Jan. 19. Virginians for Justice had hoped to use the polling data to convince a legislator to revive HB 2632 in an amended form, but they were unable to find a sponsor because, according to House rules, only a delegate who had voted to pass by the bill could present a motion to revive it.

"We’ll try again next year," said Scoven.

Meanwhile, ongoing attempts to strike down the Crimes Against Nature law through the courts were dealt a setback on Jan. 17, when the Court of Appeals of Virginia, the state’s second-highest court, refused to reconsider an earlier decision upholding the constitutionality of the sodomy statute.

The case arises from 10 men charged with soliciting undercover police officers for sex in a Roanoke public park in November 1998.

A three-judge panel Court of Appeals ruled Nov. 21, 2000, that the men could not challenge the law as an unconstitutional invasion of their privacy because the activity had taken place in public. Virginia’s Crimes Against Nature law prohibits oral or anal sex, even if it takes place in private, but the judges ruled that the men could challenge the law only as it was applied to them.

The full 12-member Court of Appeals declined to reconsider the case because there was no dissent among the three judges who decided the case.

All is not over for the lawsuit, however.

"They denied our motion, so it’s on to the [Virginia] Supreme Court," said Sam Garrison, the lead attorney in the case. Garrison must file a petition for the Virginia Supreme Court to hear the case by Feb. 16, and that court will decide whether to hear the case sometime during the spring. The case will not proceed to the U.S. Supreme Court because it deals exclusively with Virginia law.

Another challenge to the sodomy law is also working its way through the Virginia Court system, this one involving a heterosexual man convicted of consensual sodomy, after allegations of forcible sodomy were dropped. Garrison had sought to have that case, Fisher vs. Commonwealth, consolidated with the Roanoke solicitation cases, but the Court of Appeals denied his motion to consolidate, without explanation.

If the legal challenge to the Crimes Against Nature law does not reach a positive result within the next few months, Virginians for Justice hopes to make the law an issue in November’s elections by launching a public education campaign about the law and about the poll results.

"I think most people in Virginia don’t know that the [Crimes Against Nature] law affects them," said Lesser. "If people know, then they want their legislators to change it. We’re going to encourage people to contact their legislator."

Scoven said that Virginians for Justice would try to publicize the results of the poll in order to "let Virginians know what Virginians think."

"It will let people know — ‘It’s not just me. It’s my friends, it’s everybody,’" he said.

Scoven said he hopes the publicity campaign will demonstrate that legislators who have opposed the law are not responding to the will of constituents, but to the dictates of the religious right.

"I want it to be a campaign issue," said Scoven "I want those who voted for [the sodomy reform bill] to point at those who voted against it and ask ‘What was your reason?’"

"We need to vote the right people in and vote the wrong people out," concluded Lesser.

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