Last edited: February 14, 2005

Sodomy Arrest Guidelines Revised

Critics say rules on solicitation is [sic] still weighted against gays

Charlotte Observer, July 6, 2003
P. O. Box 2138, Charlotte, NC 28233
Fax: 704-358-5022

By Cristina C. Breen, Staff Writer

Charlotte-Mecklenburg police have revised guidelines that officers use when arresting people accused of soliciting sodomy in public places.

But the change, in response to last month’s U.S. Supreme Court decision to overturn the Texas sodomy law, isn’t extensive enough for some gay rights advocates, who worry police policies still unfairly target gays.

The new guidelines say police no longer can arrest people they suspect are meeting in public and agreeing to have anal or oral sex in a home or another private place.

Officers can still arrest people on suspicion of meeting in public and arranging to perform those acts in a public place or at an unspecified place. And offering or asking for money for sodomy is still considered soliciting a crime against nature.

The Carolinas are two of 13 states with sodomy laws that were brought into question when the Supreme Court overturned the Texas law banning same-sex sodomy.

In North Carolina, crime-against-nature laws make it a felony for homosexual or unmarried heterosexual couples to have anal or oral sex. And people could be arrested and charged with a misdemeanor for simply agreeing to those acts.

Gay rights advocates and defense lawyers say they don’t condone people soliciting sex in public, but they argue that police act unfairly when they arrest people on suspicion of soliciting only certain types of sex in public. It is legal, for instance, for a man and woman to meet in public and plan to have intercourse, no matter where it is to happen. But it is illegal for people to solicit anal or oral sex, unless it is to happen in a private place.

“You can’t say, ‘If you talk about this kind of sex, it’s illegal and if you talk about this kind of sex, it’s not.’ The Supreme Court said sex acts for consenting adults are on an equal playing field,’” said Ray Warren, a Charlotte defense attorney who came out as a gay man while serving as a Superior Court judge.

Charlotte criminal defense lawyer Chris Connelly said he believes “the real tenor of this case is not does it happen in somebody’s home or somewhere else outside the home. It’s about people having the right to make a decision how to live their lives.”

But police officials say the Supreme Court decision involved two men who were arrested while committing a sex act in a private home. It didn’t address solicitation of a crime against nature in public, they say, so they will continue to make arrests for those actions.

Police say many of their crime-against-nature arrests happen in public areas such as parks, after citizens call to complain about seeing people trolling for sex partners or seeing actual sexual activities under way.

“We are certainly not in the business of peeking in folks’ windows, even if we have enough people and time” said vice Capt. Tim Jayne. “These sex acts often are engaged in in wide open, wooded areas around parks and in restrooms. ... And it’s not specific to gays.”

The relationship between police and some members of the gay community has been stormy over the issue of the state’s crime against nature laws. Warren and some others claim officers entrap gay men by coming on to them in parks and other places and coercing them to agree to commit sodomy so they can arrest them.

Jayne, the police captain, says that doesn’t happen. “Our folks do not go out and solicit conversations,” he said.

In North Carolina and 12 other states across the country with sodomy laws, the courts will end up deciding how to interpret the Supreme Court’s ruling, said Duke University law professor Chris Schroeder.

While the Supreme Court ruling was clear that states cannot enforce crimes-against-nature laws for activity in the privacy of citizens’ homes, “What is open to debate is how much ... beyond the privacy of one’s own home the case extends,” Schroeder said.

“I think state officials and local officials are in the correct position to interpret that,” he said. “I don’t think there’s a lay-down obvious answer.”

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