Last edited: January 02, 2005

Court Rejects Maryland Oral Sex Ban

NewsPlanet, Monday October 19, 1998

A judge has declared oral sex equality in Maryland, where heterosexuals have been having all the fun since a 1990 ruling.

A trial judge in Baltimore on October 16 ruled against Maryland’s same-gender-only law against oral sex, one of only a handful remaining in the country. Circuit Judge Richard T. Rombro ruled that a 1990 opinion by the state’s highest court, the Maryland Court of Appeals, which exempted only heterosexual acts from prosecution under the 1916 statute, should naturally extend to same-gender acts as well.

Rombro wrote that, "It cannot be doubted, as Defendants concede, that there would be an equal protection violation if acts, considered not criminal when committed by a heterosexual couple, could be prosecuted when practiced by a homosexual couple. One need only leave out the sexual component and test the actions in any other area of criminal law. One group may drive at 60 miles per hour, but another would be prosecuted for driving at a speed greater than 50 miles per hour."

The case was brought as a class action by five plaintiffs represented by the American Civil Liberties Union (ACLU), naming the governor and other public officials as defendants. It did not challenge Maryland’s ban on anal intercourse, which applies equally to both heterosexual and homosexual acts. The court rejected the lawsuit’s request to strike down part of the state law against solicitation, a judgment which may be appealed.

In defending the law, the state’s attorneys claimed it was almost never enforced in the case of private acts between consenting adults. The plaintiffs countered that the law was still used against them in custody disputes and job discrimination, and made them fearful of prosecution.

As for the solicitation statute, the ACLU was particularly concerned to try to stop a series of police stings in parks and at a bookstore in Anne Arundel County. They maintained that some men were arrested just for inviting undercover officers to a private location for sex, and that if the sex act itself was not criminal, then the invitation should not be either. But in this case the judge found that, "an unwanted solicitation is neither private nor consensual," and noted that enforcement usually takes place when requested, as by merchants who believe their customers are being driven away. This part of the ruling may be appealed.

The plaintiffs were Takoma Park City Councilmember Bruce Williams and his partner American University professor Geoffrey Burkhart; attorney and activist Lawrence Jacobs; Paula J. Peters, who does not want her tax dollars spent on enforcing the law; and federal employee "John Doe," who was arrested under the solicitation law in a sting and had problems obtaining a security clearance as a result.

[Home] [News] [Maryland]