Last edited: February 14, 2005

Bedroom Eyes

Rhode Island's sex laws target crimes that only a Peeping Tom could know about

The Providence Phoenix, October 23, 1997
150 Chestnut Street, Providence, RI 02903
Tel: 401-273-6397
Fax: 401-273-0920

By Marshall Miller

Who can be arrested for having sex in Rhode Island? Given all the attention one recent incident has received, most residents probably know that people who have sex in the woods off a public road are at risk for arrest. In a well-publicized case, Michael Simmons was arrested allegedly for having consensual sex at a rest stop on Route 146 in September. There were no witness to this crime Simmons was arrested after he reported to police that his wallet had been stolen during his sexual encounter.

What most Rhode Islanders probably do not realize, however, is that the law under which Simmons was charged could apply to them as well regardless of their sexual orientation or marital status. The statute, 11-10-1, states, "Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned not exceeding 20 years nor less than seven years."

What exactly is an "abominable and detestable" crime against nature? The Supreme Court of Rhode Island has been clear. As recently as 1995, the court ruled that the law bans all anal and oral sex, even among consenting adults in the privacy of their homes.

But just because the Supreme Court is clear on the law doesn't necessarily mean that the rest of Rhode Island is. In the process of educating people about 11-10-1, Kate Monteiro, president of the Rhode Island Alliance for Lesbian and Gay Civil Rights, says she has realized just how little is actually known among the general public. "Every single person who I have explained this [law] to . . . they always look at me with this wonder in their eyes. They are shocked," she says. "As far as the Rhode Island Supreme Court is concerned, they do not care if it is consenting adults, in their own . . . locked bedroom."

Health educator David Abbott expresses similar views. "I would imagine that the average person believes that certain parts of their sex life, no matter what they may be, are beyond the purview of the criminal-justice system. The sodomy law is simply a great exhibition of how that is not the case," he says.

Fears that the law could be broadly applied are in part due to the 1995 state Supreme Court case State v. Jorge Lopes. Lopes was charged with sexual assault after a woman accused him of forcing her to submit to vaginal, anal, and oral sex.

When testifying at the trial, Lopes said the sex was consensual, and the jury apparently believed him. According to court documents, they returned verdicts of "not guilty" on all four counts of first-degree sexual assault.

However, the jury had been instructed to also consider the lesser charge of committing an abominable and detestable crime against nature. Under this statute, Lopes was found guilty. And after the Supreme Court upheld the decision, he was given a 10-year suspended sentence with 10 years probation, which means Lopes is now on probation.

"The jury believed him [about the sexual-assault charges], but the jury was left with no other choice but to convict him under the sodomy statute," says Paula Rosin, chief appellate attorney in the Public Defender's office. "If the sodomy statute did not exist, Mr. Lopes would not have been found guilty. He would not have a 10-year suspended sentence hanging over his head."

The plights of Lopes and Simmons reflect the varied circumstances under which Rhode Islanders can be arrested and charged with breaking the anti-sodomy law — a law that should be analyzed against the backdrop of societal views on oral and anal sex and sex among gays and lesbians and other minority groups.

In Rhode Island and in other states, tensions have arisen over so-called "cruising" areas for gay men. Even in the heavily wooded section along River Road on Providence's East Side, residents whose property bordered the park complained to police last year when they and their children saw what they interpreted to be gay men propositioning each other.

The complaints sparked a fierce debate among residents and activists over how to handle the situation, and the end result was a police crackdown on the are. During these undercover sweeps, gay men were arrested for solicitation and, yes, abominable and detestable crimes.

But in reality, River Road had long been considered a lovers' lane, and gay activists point out that gay public sex, not public sex in general, seemed to ignite the passions of nearby residents.

"In my experience, I have seen most often [the anti-sodomy law] used against gay men in outdoor sex encounters. It is an unequal enforcement of laws. Heterosexuals can find places to have sex — lovers' lanes, drive-ins — and it is not considered a problem. I think there is a certain amount of maliciousness when it is applied to gay men," says John Blakeslee, an activist in the gay community.

On one level, the public-sex debate is akin to one about the overnight-parking ban in Providence. If you have a driveway, you probably support the ban; if you don't have one, you probably oppose it. If you have no private bedroom to retreat to — such as in the case of a man who desires to have sex with other men, but is closeted or married to a woman — your need to have sex in a public space increases. "The majority of people in that situation [cruising for sex at a rest stop] are men who supposedly lead heterosexual lives," says Monteiro.

In her book Public Sex: The Culture of Radical Sex (Cleis, 1994), Pat Califia describes the importance of public places in gay culture. "Too narrow a definition of privacy could leave us with little or no right to be visibly gay, meet each other in public places, or participate in sex outside monogamous, closeted relationships," she wrote.

In light of this, some view the police crackdown on River Road as a crackdown not just on sex, but on men merely trying to meet each other in the park -- a freedom most heterosexuals have always enjoyed.

"The last time I asked any of my heterosexual friends and neighbors about having sex outdoors, virtually all of them had," says Mary Bonauto, an attorney and the civil-rights director for Gay and Lesbian Advocates and Defenders (GLAD). "[With heterosexuals] the police do not search them out, people do not complain. It does not offend them."

At least one elected official agrees. "If they are going to charge gay men, they need to charge straight couples as well," says state Representative Mike Pisatoro (D-Cranston), who is openly gay.

But while lesbian and gay activists emphasize the close connection between the anti-sodomy law and their sexual orientations, they also strive to illustrate the law's impact on other groups. Blakeslee says, for example, that disabled people could be affected. "They may need to express themselves sexually in other ways [than vaginal sex] because of their disability. What they are doing is, under the law, a crime."

Bob Mauro runs a Website called PeopleNet DisAbility DateNet from his home in New York. Severely disabled with polio, he says he found it difficult to meet potential partners. So Mauro started a newsletter concentrating on relationships, love, and sexuality, and the newsletter evolved into its present Website, [ - site moved. -Bob]

When asked if anti-sodomy laws discriminate against disabled people, Mauro says they do. "What about people with spinal-cord injuries who cannot have vaginal sex?" he asks. "For some people, it becomes a problem. It has become a very scary problem if you are involved in a relationship and somebody wants to use that against you for some reason."

Mauro says that for people with spinal-cord injuries and other disabilities, oral sex is "one of the more accessible ways of making love.

"[For] men who cannot have erections because of the severity of their disability, [oral sex] may be the only way they can engage in sexuality," he says. "If they are not allowed to do that, basically what can they do? If a disabled person has only that option and he or she loves somebody, to say that is a crime against nature, I think that is . . . primitive and ridiculous."

Of course, one doesn't need to have a spinal-cord injury or to be a gay man or a lesbian to desire oral sex. In the Sex in America survey (Little, Brown, 1994), declared to be "the most comprehensive, revealing report on our sexual behavior today" by its authors, 77 percent of the men and 68 percent of the women reported that they had performed oral sex in their lifetime, and 27 percent of the men and 19 percent of the women said they had engaged in it the last time they'd had sex.

The figures for those who'd received oral sex were similar — 79 percent of the men and 73 percent of the women had received it in their lifetime; 28 percent of the men and 20 percent of the women reported it as something they'd engaged in the last time they'd had sex.

Of course, no one was doing widely published sex surveys in 1896, the year Rhode Island's sodomy law was enacted. And over the years there obviously has been a generational shift in thinking around oral sex. In April, the New York Times ran a lengthy article by Tamar Lewin headlined Fearing Disease, Teens Alter Sexual Practice.

Lewin wrote, "In part because of the fear of AIDS and in part because of a basic shift in sexual practices, those who study adolescent sexuality say, oral sex has become a commonplace initiation into sexual activity, widely perceived by many young people as less intimate, and less risky, than intercourse." Teenagers interviewed in the article echoed that intercourse was a high-stakes decision for them and that oral sex was not.

Analyzing the respondents in Sex in America by age group, the survey's authors wrote, "Much larger percentages of women under age 50, as compared to those over 50, have given or received oral sex in their lifetime." And this rise in oral sex, they wrote, coincided with the sexual revolution of the 1960s.

Indeed, some consider a man's performing oral sex on a woman to be closely tied to a feminist politic that places importance on a woman's pleasure. Considering how the anti-sodomy law can be used in conjunction with sexual assault cases, this progressive line of thinking is particularly ironic.

According to Greg Perry, a spokesman for the Rhode Island Attorney General's office, state officials have not abolished the anti-sodomy law here because it allows them to jail sexual predators whose crimes may be hard to establish. "The law is on the books for a number of different reasons," says Perry. "[It] is used by prosecutors . . . in sexual assault cases when the elements of force and coercion are difficult to prove to a jury."

But while gay and lesbian activists recognize the need to prosecute sexual-assault cases, they are not satisfied with Pine's approach of using the anti-sodomy law to do so. "[The law] is not a necessary tool, it is an overkill tool," says Monteiro. "Thirty other attorneys general do perfectly fine [without it]."

Along similar lines, Abbott says, "It is said that Jeff Pine needs a statutory-rape law and needs a law that he can use when statutory rape cannot be pressed. This [sodomy] law is sort of like saying you need a Stealth bomber instead of a burglar alarm to protect your house from robbers."

If the Attorney General feels that present sexual-assault and statutory-rape laws are inadequate, Abbott says, Pine should write better ones. "He does not go to the legislature and ask for a better law. He chooses to keep the law right where it is."

To this Perry replies, "[Pine] is always willing to look at legislation that is being proposed [and] comment on it. We have only a limited number of bills in which we get actively involved in each year."

But activists say it's time Pine gave the abolition of this law top priority. After all, it could be a matter of life and death. In relation to the AIDS epidemic, the anti-sodomy law bans oral sex — the least risky type of sex when choosing among oral, anal, and vaginal. Indeed, recent HIV-prevention campaign literature has focused on how oral sex is safer than most other types.

Recognizing this connection, Blakeslee suggests that the state Health Department should rally against the anti-sodomy law as well. "[Consider] when somebody goes into a clinic for STDs or a test of the AIDS virus. If you admit that you are gay and that you have had sex, you are admitting to a crime. The Health Department is a group, I would think, that would lobby to strike this law. I think the sodomy law hampers their efforts to get [people] in for testing and education."

In the nationwide fight against anti-sodomy laws, the most recent victory occurred in July, when the Montana Supreme Court struck down that state's law by "ruling that sexual activity between consenting adults of the same gender would no longer be illegal," said Mark Johnson of the National Gay and Lesbian Task Force in a recent press release.

Unlike the Rhode Island law, Montana's only banned "sexual contact" between people of the same gender, not all anal and oral sex, according to Johnson. And today 30 states and the District of Columbia have no anti-sodomy law. Five states have a same-gender anti-sodomy law, and the other 15, including Massachusetts and Rhode Island, have laws that apply to same- and opposite-gender sex.

In 1986, the US Supreme Court upheld a Georgia anti-sodomy statute in a case involving Michael Hardwick, a gay bartender from Atlanta. A police officer had entered Hardwick's home with an expired warrant and had walked into the bedroom, where he found Hardwick having oral sex with his lover. Hardwick was arrested on the spot.

The court decision stunned many civil- and gay-rights activists, in part because of the court's emphasis on what it termed "homosexual sodomy." In its decision, the court said that it was "quite unwilling" to announce "a fundamental right to engage in homosexual sodomy."

Concurring with the majority, Chief Justice Warren Burger wrote, "To hold that homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Coming from members of the most powerful court in the nation, language like this concerns gay, lesbian, and bisexual activists even more than the laws themselves. What's more, the Hardwick case serves as yet another example of how one's own bedroom is not beyond the eyes of the law.

Indeed, the distinction between public and private sex is a hazy one, according to the editors of Policing Public Sex (South End Press, 1996). "Some readers might assume a clear boundary between public and private sex, but the writers here do not. In this day and age, you can't avoid public sex even if you stay at home. From accidentally catching your neighbors naked or fucking, to casually flipping channels at 2 in the morning and catching a porn star . . . you live in a world filled with voyeurs, Peeping Toms, and sophisticated visual consumers."

The distinction between public and private sex is also blurred by semi-secluded rest stops, such as the one on Route 146. After all, can sex that takes place outdoors truly be considered "public" sex if no one else witnesses it? Activist Blakeslee doesn't think so.

"The police [in the North Smithfield case] went to [great] lengths to point out that [Simmons and Steve Chausse] were having sex outdoors. There was no witness or complaint about the sex there. It was only the victim of the theft that admitted it, and brought the brunt of the law on himself," he says. "The laws regarding public sex are aimed at someone who is aware that they are offending people in public with their display of sexual activity.

"I don't think that people who find a secluded place and have a reasonable expectation of privacy — that is why they go to the woods — should be prosecuted for public sex," adds Blakeslee. "It was not their intention to have sex in front of people, to offend people."

Monteiro says a new group is forming called the Coalition for Privacy, and it will not only include activists, but members of the religious community. "The education [around this issue] is going to have to involve a good deal of outreach to community members and also legislators," she says. Monteiro emphasizes that "the discussion will focus on privacy issues and the right to have personal privacy around sexuality."

In the General Assembly, state Representative Edith Ajello (D-Providence) and Pisatoro are among those attempting to change the anti-sodomy law. "We are going to be looking at a lot of different options in terms of how we could repeal it in the legislature and the court system," says Pisatoro. "We may decide on a double-pronged approach."

Ajello, who has sponsored a bill every year for the last five to repeal the law, is optimistic about its chances in '98. "[This year] it has gotten more publicity," she says. There have been more newspaper editorials and other types of public comment in favor of repeal.

"I hope that all the people who read the Phoenix call their legislators and speak their minds," Ajello says.

"It always seems to us that legislators politicians do not want to look like they are getting soft on crime. Repealing any sort of law, even a century-old ridiculous law like this, is not something they are going to put in their campaign literature," adds Pisatoro. "We need to give legislators something that they are going to feel comfortable with."

But for now, the law is still on the books, and Monteiro and Blakeslee take no comfort in Pine's promises. "Yes, the Attorney General may not be using it against straight couples, but the next attorney general might," says Monteiro.

Blakeslee adds that "the law is vicious in its effects. It can ruin a person's life. It is a felony. It is a nightmare that becomes real."

Indeed, for Michael Simmons, the law meant a night in jail for reporting his wallet stolen. For Jorge Lopes, it means 10 years of probation. What it could mean for the vast majority of Rhode Islanders who also have committed sodomy remains to be seen.

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