Last edited: December 08, 2004

Prosecutors Split on Whether Solicitation Is Illegal

Southern Voice, June 10, 1999
1095 Zonolite Road, Atlanta, GA 30306
Phone: (404) 876-1819

In November, the Georgia Supreme Court threw out the sodomy law, but left the law against solicitation of sodomy intact. A survey of metro countries reveals a patchwork of prosecutions

By Laura Brown

Ask someone to engage in private, non-commercial sodomy in Cobb County or DeKalb, and officials say you're unlikely to face prosecution. Solicit someone for the same act in Gwinnett County, and the county prosecutor has vowed he will "vigorously" pursue charges against you, all the way to the Georgia Supreme Court if necessary.

In a decision late last year that was hailed as a victory for gay rights, the Georgia Supreme Court struck down the state's sodomy law, which had banned "any sexual act involving the sex organs of one person and the mouth or anus as another."

While the law applied to both heterosexual and homosexual acts, gay rights advocates have argued that it was used to brand gays as criminals and justify discrimination in areas like employment and child custody.

But although Chief Justice Robert Benham wrote in the court's 6-1 decision that "we cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," the ruling did not strike down the Georgia law against "solicitation of sodomy," a misdemeanor committed when one "solicits another to perform or submit to an act of sodomy."

The resulting confusion has led to a patchwork of approaches to prosecutions by metro area "solicitors," the elected county officials charged with prosecuting misdemeanor crimes, a Southern Voice survey revealed.

Solicitors in Cobb and DeKalb counties said they do not plan to prosecute solicitation of sodomy charges that do not involve prostitution, while prosecutors in Gwinnett and Fulton counties said they will continue to follow the exact letter of the law.

The state Department of Transportation has also vowed that it will enforce all laws on the books, including solicitation, in public rest areas along the state's highways.

Meanwhile, legal advocates who opposed the sodomy law insist that the solicitation of sodomy law should also be ruled unconstitutional.

"I think it is just a basic rule of criminal law that if an act is lawful, than soliciting that act cannot be unlawful," said Steve Scarborough, staff attorney with the Lambda Legal Defense & Education Fund. "But I recognize that [the Supreme Court's sodomy decision] leaves at least a gray area on that, and I think your readers should be careful."

Even if the solicitation takes place in public, it should not be illegal if the sexual activity is to take place in private, such as asking someone to go back to a hotel room or home, said Debbie Seagraves, executive director of the ACLU of Georgia.

"The Georgia Supreme Court in issuing the sodomy ruling affirmed a Georgia citizen's right to privacy under the Georgia Constitution, and that privacy is not just in your home," she said. "A private conversation between two people, even if it is in a public place, should still be private. To try to censor the content of a private conversation is not the job of our law enforcement officials."

Both county prosecutors and attorneys said they would welcome a clarification of the solicitation of sodomy law from either the courts or the legislature. Until then, Scarborough said, prosecutions will be left to the discretion of officials who have their own individual interpretations and possibly biases, and as with the sodomy law, gay men and lesbians may be at risk of unequal treatment.

"We're talking about conduct that should not be subject to punishment, period, and in this case there is a long history of prosecutions being used to humiliate and stigmatize," he said. "I think the gray areas [in the Supreme Court's sodomy decision] are especially regrettable when you are talking about this sort of offense."

Cobb and DeKalb: no prosecutions planned

Asked whether his office was still prosecuting solicitation of sodomy charges in light of the Georgia high court's sodomy decision, Cobb County Solicitor Barry Morgan gave the most unequivocal "no" of the four metro Atlanta counties surveyed, citing logic similar to Lambda's Scarborough.

"It's at least the opinion in our office that since the prohibition against [sodomy] has been declared unconstitutional, you cannot still prosecute someone for solicitation of something that is legal," he said.

Morgan estimated that prior to November, the Cobb County Solicitor's office handled about 100-150 solicitation of sodomy cases per year. He declined to estimate how many of those cases involved homosexual acts, usually the result of undercover sting operations where officers pose as men interested in sexual activity, and how many involved heterosexual acts, charges that usually involve prostitution.

"We have not prosecuted any solicitation of sodomy cases since the Supreme Court made their decision," he said.

Morgan said he has "shared his opinion" on prosecuting solicitation charges with police in Cobb County, who were well known for staging sting operations in two Cobb County parks—A.L. Burruss and Wildwood—where men frequently sought other men for sexual acts.

"To my knowledge, they haven't conducted any more of those [stings]," Morgan said. Although soliciting someone for an act of sodomy to take place in a public place like a park is beyond the scope of the right to privacy described by the Georgia Supreme Court, "we were having difficulty with the cases prior [to the decision], and I think with the argument it just takes it one step forward," he said.

Cobb County Police spokesman Drew Marchetta said most of the undercover operations were conducted by the Marietta Police, not his department. "We're going to follow the guidance of our prosecutor," he said.

Lt. Rick Townsend—spokesman for the Marietta Police Department, which arrested 35 men for sex-related charges with undercover male officers in A.L. Burruss and Wildwood Parks in just six days of stakeouts in the summer of 1997—said his department hasn't conducted any undercover operations in the parks since November and has no plans to do so in the future, but not because of the Georgia court's decision.

"It's not that we are overlooking it, it's just not in our plans at this time," Townsend said, adding that new sting operations could be scheduled "if the need arises."

Meanwhile, DeKalb County Solicitor Gwen Keyes said her office has not adopted an official policy on such prosecutions, but she agrees with Morgan's analysis.

"I have to agree with the Cobb County Solicitor," said Keyes, who was elected to her post last year with strong support from gay voters. "I guess we haven't had a formal discussion [about prosecuting solicitation of sodomy charges] only because we haven't seen the frequency of cases."

Surveying the cases currently awaiting prosecution in DeKalb County, Keyes said she found only "three or four" cases containing a solicitation of sodomy charge and "all were prostitution-based cases where they are going into massage parlors and then soliciting sodomy." Commercial activity is not protected by the supreme court's ruling.

Keyes said the head of the county's vice unit said such operations were the only targets of sting operations in DeKalb. "They have never focused on the gay community or this type of crime," she said. "They are not the moral majority, and that is not their job to try and pursue anybody for that, so here in DeKalb County we don't make an issue of it."

Gwinnett and Fulton: still prosecuted

In stark contrast to Cobb County and DeKalb County, Gwinnett County Solicitor Gerald Blaney said he will gladly prosecute anyone arrested for solicitation of sodomy, regardless of where the suggested conduct was to take place.

Blaney, a Republican who has held the Gwinnett post since 1987, went so far as to say that he would love to be the one to defend the solicitation of sodomy law before the Georgia Supreme Court, if someone he prosecutes files an appeal.

"Here's the circumstance that I see in these cases—an opportunity to go to the Supreme Court and argue that this statute will withstand constitutional scrutiny, while the sodomy statute will not," he said.

Blaney said his office currently has "several" solicitation charges pending, but the system of record-keeping does not provide an easy way to determine how many involve men soliciting other men for unpaid sodomy, and how many involve heterosexual prostitution.

But if he gets to defend the solicitation law in front of the Supreme Court, Blaney said his argument will stick to one blunt theme: "My mama should not have to walk down a street and have people coming up to her and saying 'Will you suck my dick?' and that not be against the law. It ought to be."

"Now I'll tell you something else we've been working on here," Blaney added. "We've been working on a list of every sexual pun you can think of, and I'm going to use all of them in my argument. I'm going to start out by saying, 'I'm here for oral argument, and I realize that this is going to be hard for y'all to swallow.' … Honey, I make 'em roll when I go down there."

Blaney scoffed at Morgan's interpretation that it should not be illegal to ask someone to participate in an legal act, although Blaney's response could itself be interpreted as an illegal act of solicitation of sodomy directed at the Cobb prosecutor.

"You tell Barry Morgan to eat me, stupid Morgan, or I'll call him, the doofus head," Blaney said.

Fulton County Solicitor Carmen Smith said her office also has no plans to stop prosecuting solicitation of sodomy charges, though her response was much less strident than Blaney's.

"I would love to tell you I knew firsthand all of the 22,000 cases we handle, but I'm sure it is business as usual [for solicitation] cases," she said. "It remains a crime punishable as a misdemeanor, so as long as the law remains on the books, we will proceed as usual."

Smith declined to speculate on scenarios involving solicitation for a private act, a public act or a paid act, noting that "the statute does not distinguish between those." She said her office would continue to prosecute people arrested for solicitation of sodomy, regardless of the Georgia Supreme Court's sodomy decision, until such time as either the courts or the state legislature specifically repeals the solicitation law.

"When the [Supreme Court] case came down, it was confusing, and we just had a General Assembly session, and no one stepped up to the plate to clarify it," she said. "So as a prosecutor, I am stuck with a lot of things that the General Assembly designates as misdemeanors. I have to prosecute them whether I like it or not."

In the past, undercover sting operations in Atlanta's Piedmont Park had been a common site for arrests of gay men for soliciting sexual activity, but a spokesperson for the Atlanta Police Department said those kinds of undercover operations are not currently being conducted, and would not resume unless the department receives complaints from citizens.

"Our whole emphasis is on the quality of life for our citizens, and we don't go out of our way to make these charges," said Information Officer Marion Lee. "Drugs, prostitution—those are things that are going to have an impact on public safety and health issues, and that is where our focus is, not necessarily to have a team of undercover folk or patrolling folks in and around Piedmont Park to see what folks may or may not be doing."

Action! Info

Cobb County

Barry E. Morgan, Solicitor General
12 East Park Square, Suite 101B
Marietta, GA 30090
call: 770-528-8500

DeKalb County

Gwen Keyes, Solicitor General
556 N. McDonough St., Room 500
Decatur, Ga. 30030
call: 404-371-2201

Fulton County

Carmen D. Smith, Solicitor General
160 Pryor Street, J-301
Atlanta, Ga. 30303
call: 404-730-4800

Gwinnett County

Gerald Blaney, Solicitor
75 Langley Drive
Lawrenceville, Ga. 30045
call: 770-822-8300

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