Last edited: February 12, 2005

Nixon Disagrees with State Ban on Gay Sex

Attorney General Says His Job Demands He Defend Law After Court Ruling

Columbus Daily Tribune, August 22, 1999
Box 798, Columbia, MO 65205
Fax: 573 815-1701

By Rudi Keller, of the Tribune’s staff

Attorney general Jay Nixon’s court battle to preserve Missouri’s law against homosexual acts isn’t a reflection of his views on whether the law is just, he said last week.

Meanwhile, the conservative Republican lawmaker responsible for keeping the ban in place is watching the case to determine whether action will be necessary next year to preserve the law.

Nixon, who in court filings has called upon the Western District Court of Appeals to revise its ruling in a sexual misconduct case, said last week he doesn’t believe homosexual acts should be illegal.

"Sex between consenting adults should not be a crime, regardless of the sex of the people involved," Nixon said. He added that his role is to defend the law, regardless of whether he likes it.

The appeals court ruled in early July that a Jackson County man was wrongly convicted of first-degree sexual misconduct for acts involving a 13-year-old boy because evidence showed the acts were consensual. Gay rights groups interpreted the ruling to mean that activities prohibited by the misdemeanor misconduct law, including homosexual acts, are legal if both parties consent.

Nixon said it was appropriate to ask the court to clarify its ruling despite his personal views.

"My assistants regularly file motions seeking clarifications," he said. "There is clearly a legal question here."

The question Nixon’s office wants answered is whether a consent clause in the sexual misconduct statute applies to all three activities it covers. In addition to homosexual acts, the law bans sexual contact — defined as touching another person with fingers, tongue or genitals to gain arousal — or touching that would be sexual contact except that it occurs through clothing.

A clause at the end of the law adds "without their consent."

In the Jackson County case, William Cogshell was convicted for "sexual contact" with the teen. In the court filings, Nixon’s office wants the court to clarify that the consent clause applies to the sexual contact portion of the law and not the homosexuality ban.

Asking the court to modify its ruling is a duty, not a choice, Nixon said. "We defend all the laws, even the ones I don’t agree with. I took an oath to support the laws and constitution of the state."

The first-degree sexual misconduct law was passed in 1994. The original proposal, part of a comprehensive rewriting of all sex crimes, eliminated the ban on homosexual conduct.

But Sen. Larry Rohrbach, R-California, restored the ban during committee work. He supports Nixon’s actions.

"It is fairly clear that the legislative intent was to leave the homosexuality part alone," he said.

If the court declines to revise its ruling, Rohrbach said, lawmakers might have to take action.

"It could be clarified, there is no doubt."

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