Last edited: January 02, 2005

Defendants in Missouri Sodomy Case Challenge State’s Ban on Gay Sex

Kansas City Star, December 16, 2002
1729 Grand Avenue, Kansas City, MO 64108
Fax: 816-234-4926, Email:

By Shashank Bengali, The Kansas City Star

The theater at the back of the eastern Missouri adult video store was showing a pornographic film. But six men and one woman weren’t watching.

They were engaged in various sex acts with one another, say police, when officers raided the store one night in March. The seven were arrested.

Eager to send a message that such behavior in public would not be tolerated, prosecutors combed the Missouri law books for a crime with which to charge the patrons. They found a rarely used sexual misconduct statute that bans sex between people of the same gender, and charged the six men.

But they had nothing on the woman involved. She walked free.

That, to civil-liberties advocates, illustrates the inequity of the sexual misconduct statute, which makes Missouri one of only four states—Kansas, Oklahoma and Texas are the others—where homosexual sex is illegal.

“The facts of this case point out the fundamental unfairness here,” said Denise Lieberman, legal director for the American Civil Liberties Union of Eastern Missouri, which is representing four of the men. “All these folks were in this room, and only some of them get charged....

“Basically, you’re a criminal based only on your sexual orientation.”

The ACLU and gay-rights groups are encouraged by news this month that the U.S. Supreme Court plans to decide whether such laws are constitutional. The high court said it will review the prosecution of two men in Texas, which could have implications for laws in 13 states—nine that ban sodomy for everyone, and the four that punish only same-sex sodomy.

Lieberman said the key issues justices will consider in the Texas case—the rights to privacy and to equal protection under the law—match those stemming from the raid on Award Video in High Ridge, Mo., 20 miles from St. Louis. No charges were filed against the store, now called Maximus Video under new management.

Prosecutors have offered the men a chance to avoid going to trial by accepting a lesser charge: disturbing the peace, which carries probation and a fine. But last week the ACLU’s attorney filed a motion to dismiss the case on the grounds that Missouri’s sodomy law is unconstitutional.

“It appears,” Jefferson County Prosecuting Attorney Bob Wilkins said, “they want to fight this.”

Wilkins, recently elected to his third term, said he isn’t a prude or a homophobe; nor is he trying to legislate morality. He said he merely is trying to stamp out “a health hazard”—open sexual activity at a place where the private video booths had buckets and mops and a sign asking patrons to clean up after themselves.

“I want to stop the behavior,” Wilkins said. “I don’t necessarily agree with the statute. This isn’t something we’ve invented to harass gays.”

He would have charged the woman—the wife of one of the men—if he could have, he said. Missouri law prohibits heterosexual sex that causes alarm or affront to others, but he said it was unlikely that anyone at Award Video would have been alarmed by the woman’s behavior.

“This is an adult movie-rental place where you pay extra money to go into the theater,” Wilkins said. “You know full well what you’re doing when you go in there.... This isn’t Blockbuster.”

Media seized on news of the March 13 raid, which resulted in 13 arrests on an array of charges, most of which were dropped later. The six men saw their names and pictures plastered on St. Louis television newscasts, and the case became a cause célèbre among gays.

The Advocate, a national gay newsmagazine, wrote that the story “seemed more likely to come out of the Middle East than the American Midwest.”

The four defendants being represented by the ACLU didn’t respond to interview requests made through Lieberman, their attorney. But Lieberman said the experience has been traumatic.

“These are people who live in small towns where everyone knows them,” she said. “One of our clients said two big guys threatened to beat him up. One of the others has a wife who was not there with him that night. She found out on TV.”

Prosecutions under the Missouri sexual misconduct statute are rare, legal specialists said. Defendants facing more serious charges sometimes plea-bargain down to sexual misconduct, a misdemeanor punishable by at most one year in jail and a $1,000 fine. (In Kansas, a similar law carries a maximum penalty of six months in jail and a $1,000 fine.)

And prosecutions have been rarer still since 1999, when an appeals court in Kansas City ruled that the law does not prohibit consensual sex.

But the appeals court’s decision isn’t binding outside Missouri’s western district because the state Supreme Court has yet to take up the consent issue. If the Award Video case goes to trial, some think it could result in a state Supreme Court decision to clarify the law.

“It’s certainly the most clear-cut example we’ve seen in a long time of how the law is truly discriminatory,” said Jeff Wunrow, executive director of a statewide gay-rights group, PROMO, that was founded in 1986 to fight the ban on gay sex.

“I think we have a good chance of demonstrating that it violates the equal-protection clause” in the U.S. Constitution, Wunrow said.

But the case would be moot if the U.S. Supreme Court, in a decision expected in June, finds the Texas sodomy law unconstitutional. Such a ruling probably would invalidate Missouri’s sexual misconduct statute.

In the meantime, Wilkins said, his offer to the defendants—to accept probation and a fine—remains on the table. Their attorneys must decide whether they want to challenge the statute, he said.

“At this point,” Wilkins said, “the law is on our side.”

  • To reach Shashank Bengali, Missouri correspondent, call (816) 234-4759 or send e-mail to

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