Last edited: December 19, 2004

Attorney Vows to Petition for a Rehearing by The Full Court

Virginia High Court Rejects Wasena Park Appeal

Ten men who solicited oral sex from officers had argued that a sodomy law is a privacy invasion.

The Roanoke Times, June 6, 2001

By Tad Dickens

A three-judge panel of the Virginia Supreme Court has refused to hear the appeal of 10 men convicted of soliciting oral sex from undercover police officers in Roanoke’s Wasena Park.

It is the latest setback in the men’s attempt to get Virginia on the growing list of states that have abolished laws against sodomy. But their attorney, Sam Garrison, said Tuesday that he will petition for a rehearing by the full court. If the court refuses, the case will be over, he said.

Garrison received the ruling this week from Justices Lawrence Koontz Jr., Elizabeth Lacy and Christian Compton. In the ruling, issued without comment, the judges did not address whether the statute is an unconstitutional violation of privacy. But in questioning Garrison during his May 24 oral argument, the panel focused on whether the men had legal standing to make that argument, Garrison said.

"From the trial court all the way up through this ruling, no Virginia judge had come anywhere close to saying whether this is constitutional," he said.

The state’s "crimes against nature" statute makes it a felony for any adult, regardless of sexual orientation, to have oral sex anywhere - whether it’s in a public park or a private bedroom.

When the Court of Appeals rejected the 10 men’s appeal last year, it ruled that they had no legal standing to raise the privacy issue because their actions were made in a public park.

In questioning Garrison during oral arguments, Supreme Court justices also expressed skepticism about whether the right to privacy applied to the men, Garrison said.

Their journey through the courts began some two years ago, when Roanoke police posted undercover officers in the park. Nearby residents had complained that men seeking sex partners had turned the recreational park into a "cruising" spot.

No sex acts took place, but eighteen men were charged with soliciting sodomy.

Three defendants were eventually acquitted by juries after arguing that the officers’ flirting led to their requests for oral sex. After the acquittals, prosecutors dropped charges in two other cases.

Twelve men pleaded guilty and took suspended jail sentences. Nine of the 12 accepted an opportunity to challenge the law on appeal. A jury convicted a 13th defendant, sentencing him to 60 days in jail.

Garrison said those clients with whom he had spoken were disappointed but not surprised.

"They’ve always been hopeful, but never let themselves get carried away with it," he said.

Virginians for Justice and the American Civil Liberties Union are among organizations hoping the court would strike down the anti-sodomy law. They have said authorities use the law unfairly against gays.

The leader of a family - rights group based in Bedford County said Garrison is not helping his clients by continuing to push their case in the court.

"It actually creates a public health risk for the entire commonwealth of Virginia," said Joe Glover, president of the Family Policy Network.

Garrison said he is still waiting for a Court of Appeals panel’s decision on the case of Fred L. Fisher, who was convicted of having oral sex with a woman in Frederick County. Fisher had been charged with rape and forcible sodomy, but was convicted of consensual sodomy. Virginia law considers that a "crime against nature" with a five-year maximum sentence.

Garrison had asked the Supreme Court to assume jurisdiction of the case from the Court of Appeals. But the court had already denied that motion by the time it issued its ruling this week.

As of May 11, Virginia is one of 14 states in which oral sex is illegal, according to the Web site for the Lambda Legal Defense and Education Fund, a gay activist group. As recently as 1960, all 50 states and the District of Columbia had such laws.

"One of these days, the right case is going to get there," Garrison said. "And when that day comes, I hope our court will address it in the same way all the other courts, except Louisiana, have done."

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