Last edited: February 14, 2005

Virginia Sodomy Case Loses Final Appeal

State Supreme Court Denies Petition for Rehearing for 10 Men

Washington Blade, August 17, 2001

By Rhonda Smith

The Virginia Supreme Court has denied without comment a petition for rehearing filed by a lawyer for 10 men convicted in 1998 of soliciting oral sex from undercover officers in Roanoke’s Wasena Park.

The full court’s action July 27 lets stand a decision by a three-member panel of the state Supreme Court not to hear the appeal in June.

Justices Lawrence Koontz Jr., Elizabeth Lacy, and Christian Compton on June 1 declined without comment to hear the 10 men’s appeal. The plaintiffs in Elvis DePriest et al. v. Commonwealth of Virginia, then filed a petition for a rehearing by the full seven-member Virginia Supreme Court.

Openly gay Roanoke lawyer Sam Garrison, who represented the plaintiffs, led the effort to have the state’s "crimes against nature" law repealed.

"This decision is disappointing but not surprising," Garrison said. "Our effort to get Virginia’s archaic [sodomy] statute struck down as an unconstitutional invasion of privacy has always been an uphill battle, given the public nature of the defendants’ conduct."

A total of 18 men were originally charged with soliciting sex in Wasena Park about three years ago. Four of the men took part in separate jury trials and only one was convicted; the other three were acquitted.

Garrison represented the man whom a jury convicted and nine other men who entered guilty pleas for their actions in the park. The guilty pleas allowed them to contest the validity of Virginia’s sodomy law.

The plaintiffs sought to challenge the law as an unconstitutional infringement on the privacy rights of all Virginians because it prohibits any act of oral or anal sex regardless of whether the participants are in public or private, male or female, married or single.

Last November, a three-judge panel of the Virginia Court of Appeals upheld the convictions of the 10 men and ruled that because they solicited sex in a public place they had no legal grounds to challenge the state’s sodomy law, which makes consensual oral sex a felony. Garrison then petitioned the state Supreme Court for a hearing, and the three-member panel made its ruling.

"The fact that we have clearly lost these cases does not necessarily mean that our constitutional arguments were wrong, only that the Virginia judiciary is not yet ready to bite the bullet and acknowledge the merits of my clients’ essential position that the government of this commonwealth simply has no business or constitutional power to regulate the non-predatory private sexual conduct of consenting adults, period," Garrison said.

This year in the Virginia legislature, lawmakers proposed various bills that addressed changing the state sodomy statute, but they did not vote on any of them. Last year the House of Delegates voted 50-49 on legislation to drop the charge for violating the sodomy law from a felony to a misdemeanor. A similar measure died before getting out of a state Senate committee.

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