Last edited: August 25, 2003

N.C. Sodomy Law Still Enforced Despite Ruling on Texas Measure

Associated Press, August 25, 2003

RALEIGH, N.C.—Police and sheriff’s deputies are still enforcing North Carolina’s crime against nature law despite a U.S. Supreme Court decision striking down a similar Texas law prohibiting homosexual sex.

The North Carolina law is defined to ban oral or anal sex between unmarried couples. Critics contend it has been used to criminalize gay relationships and discriminate against homosexuals.

Constitutional law experts and gay advocates say the state statute became invalid when the Supreme Court struck down the Texas law against sodomy.

“We don’t believe that there is a constitutional way to enforce the crime against nature law,” said Seth Jaffe, managing attorney for the American Civil Liberties Union of North Carolina.

Law enforcement officials said they continue to use the law because it is their only way to make arrests for prostitution that involves oral sex, which isn’t covered under the state’s prostitution law.

Prosecutors also bring crime against nature charges against people who have sex in public, which other state laws don’t specifically prohibit. A charge of indecent exposure would not necessarily apply because it’s a crime to be naked in public only if seen by a member of the opposite sex.

John A. Maxfield, legal adviser to the Wake County sheriff, and Dawn Bryant, Raleigh’s police attorney, have told officers they can continue to charge people with crime against nature as long as the activity occurs in a public place.

“We’re following constitutional law,” Bryant said. “The Supreme Court’s decision only applies to private conduct.”

Prosecutors in Brunswick County, for example, recently dismissed charges against three men for sexual activities at a party in a private residence.

They are pursuing charges against six men accused of having oral sex in a public park near a school.

“The only thing we want,” Brunswick County assistant district attorney Connie Jordan said, “is for them not to have sex next to where kids are getting on a bus.”

No figures were available on the number of people charged with crime against nature in North Carolina since the Supreme Court ruled June 26. In the first six months of this year, more than 400 people were charged with either violating the crime against nature law or soliciting to break the law.

At least one jurist, Mecklenburg County District Court Judge Nate Proctor, has declared the state law unconstitutional as a result of the Supreme Court’s decision. Proctor’s ruling, now on appeal, came in the case of a 38-year-old man charged with solicitation to commit crime against nature.

The man alleges he was lured into a flirtatious conversation with an undercover officer in a public park, said his lawyer, Ray Warren of Charlotte, a former Superior Court judge and state legislator.

Warren said he was disappointed that neither the state’s Conference of District Attorneys nor state Attorney General Roy Cooper has issued definitive statements urging prosecutors to halt charges under the statute.

Cooper spokesman John Bason said the Attorney General’s Office offers opinions only when government officials or agencies request them. None have asked for formal guidance on the issue, he said.

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