Last edited: January 02, 2005

Judges Let Sex Ruling Stand

Attorney General Loses Bid for Clarification of Decision’s Impact on Gay-Sex Ban

Daily Tribune, September 1, 1999
Box 798, Columbia, MO 65205
Fax: 573 815-1701

By Rudi Keller of the Tribune’s staff

The Western District Missouri Court of Appeals yesterday declined to reaffirm the state law against homosexual conduct.

The decision, which was issued without comment by the court, leaves in place a July 6 opinion that calls the law into question. The court in that opinion ruled that consent was a defense to the crime of first-degree sexual misconduct, a misdemeanor.

The sexual misconduct law is the only state law that attempts to criminalize private homosexual acts. It is now up to state lawmakers to decide whether to rewrite the law. The opinion did not strike down the law, which means a person could still be charged under the statute, said Tara Jensen of the state Public Defender’s office. "They can always be charged, but I think at this point it will be a sufficient defense that the person you engaged in the act with consented," Jensen said.

Attorney General Jay Nixon’s office had asked the court to modify the July 6 opinion because the case didn’t directly address homosexuality.

In the case, William Cogshell of Kansas City had been convicted of two counts of sexual misconduct for touching a teenage boy in a sexual manner.

The ruling overturned Cogshell’s conviction, saying the evidence was clear the boy had consented. Cogshell did not appeal felony convictions for statutory sodomy and is serving a 13-year prison term on those charges.

Nixon’s office asked for the modification because the ruling allowed for an interpretation that consent was a defense to the homosexual ban as well as the ban on unwanted sexual touching.

Nixon said in a recent interview that he personally opposes laws making homosexuality a crime but he sought the change because his office defends all state laws.

There will be no further appeal in the case, said Mary Still, spokeswoman for Nixon.

Jensen said she pursued the appeal despite the limited impact on Cogshell’s overall time in prison. He was sentenced to six months on the sexual misconduct charges, time he would have finished serving before the court issued its original ruling.

"Ultimately, anybody who has a record would prefer to have fewer crimes on their record than more," she said. "In reality, the crime he was charged with was a crime he did not commit."

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