Last edited: January 02, 2005

Maryland Judge's Ruling Protects Private, Consensual Sex Acts

Washington Post, January 20, 1999
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By Amy Argetsinger,
Washington Post Staff Writer

A Baltimore judge handed a victory to privacy and gay-rights advocates yesterday, ruling that Maryland's 80-year-oldanti-sodomy law cannot apply to consensual acts.

The decision by Circuit Court Judge Richard T. Rombro extends his October ruling that homosexual oral sex could no longer be considered criminal by applying the same legal logic to anal sex as well.

"This is saying the government will not intrude in the bedroom," said Dwight Sullivan, a staff counsel for the American Civil Liberties Union, which had filed a class-action suit challenging the law on behalf of several gay men and lesbians.

State officials, who had offered no objection to the ACLU's argument to protect private, consensual anal sex, said the ruling was largely symbolic. They note that few Marylanders, if any, have been prosecuted for private sexual activity.

Yet ACLU officials argued that the old law posed a threat to privacy rights and left homosexuals vulnerable to job discrimination and unfair attacks in child custody cases.

The Maryland ruling follows a nationwide trend: Over the last couple of decades, anti-sodomy laws have been either repealed or ruled unenforceable by the courts in 31 other states. Sodomy remains illegal in Virginia and 17 other states, five of which only target homosexual acts. The U.S. Supreme Court ruled in a Georgia case in 1986 that anti-sodomy laws are constitutional.

The ruling by Rombro settles the ACLU's 1997class-action suit and may resolve a decade-long controversy over the state's 1916law banning all forms of sodomy and "unnatural or perverted sexual practices."

In 1990, the Maryland Court of Appeals chipped away at the law, ruling that it could not be used to prosecute consensual, nonpublic acts of oral sex – but the high court only specifically shielded heterosexual, not homosexual, activity.

Gay-rights activists protested, saying the ruling denied them equal rights. Meanwhile, the high court remained silent on anal sex, which remained illegal for everyone.

The ACLU asked Rombro to declare the law unconstitutional. Rombro declined, but instead ruled last fall that the Court of Appeals' decision on oral sex should extend to homosexual activity as well.

In yesterday's final ruling, Rombro agreed that private, consensual anal sex also cannot be prosecuted.

Liberal state legislators applauded the court's decision. "It should have happened a long time ago," said Del. Sharon Grosfeld (D-Montgomery).

Grosfeld said she might support a bill to amend the old law, despite the judge's ruling that it is essentially unenforceable.

"Our statutes and our law books are a way for people to know their rights and responsibilities," she said. "If it's not repealed, many people will think it's still good law."

But although ACLU leaders had planned to lobby the General Assembly to rescind or amend the old law, Sullivan said the organization is now satisfied with the judge's ruling.

Andrew H. Baida, an assistant attorney general, said officials would like to keep the law on the books to help prosecute cases of sexual assault, prostitution or sex in public.

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