Last edited: December 06, 2004

Two Men Charged Under State's Sodomy Law

Houston Chronicle, November 5, 1998

By R.A. Dyer

In a case that could have broad legal implications, two area men have been charged under the state's sodomy statute for engaging in consensual sex in a private residence. Harris County sheriff's deputies, responding Sept. 17 to a false report of an armed intruder in a northeast Harris County apartment, found two men engaged in sex and charged them with "homosexual conduct." One of the men lived in the apartment.

The two men spent several hours in jail before being released on $200 bail. They are to be arraigned in a justice of the peace court on Nov. 20.

The state's 119-year-old sodomy law, which was modified by the 1995 Legislature, makes homosexual oral and anal sex a class C misdemeanor, which carries a fine of up to $500. The defendants, who are 31 and 55, could not be reached for comment. But one of their attorneys, who declined to discuss the specifics of the case, said they appear willing to fight it in court.

"This is just unbelievable that in 1998, this sort of arrest could happen," said their other attorney, Mitchell Katine. "For all those people who have said over the years that this statute is never enforced need to realize that that's not true." In fact, such prosecutions are rare. Activists and attorneys could cite no Texas case in which consenting adults were prosecuted for engaging in private sexual conduct. Harris County District Attorney John B. Holmes Jr. said two or three sodomy law cases had been prosecuted over the last 30 years, although those involved homosexual contact witnessed by others in a public jail.

Gay activists have tried for years to have the sodomy statute struck from the books, arguing that it is often used to justify anti-gay discrimination in such areas as hiring and adoptions. But with no defendant in a criminal case, efforts to remove the law have met with mixed success.

In 1994, for instance, the Texas Supreme Court ruled it did not have jurisdiction over a civil challenge to the sodomy law because the plaintiffs never had been prosecuted under it. However, in a separate civil case, a lower court had ruled the statute was unconstitutional.

Activists say this new case could sink the sodomy statute. Though outraged over the arrests, several appeared eager for the case to go to trial. "Obviously, that's what we're hoping," said Clarence Bagby, president of the Houston Gay and Lesbian Political Caucus. "We certainly hope to move this forward, and we'd love to see it move all the way up the ladder and be declared unconstitutional. We need to get this off the books."

Holmes also questioned the fairness of the law, but said his office is obligated to try to uphold it.

"We're supposed to presume that these laws are constitutional," Holmes said. "If we just say, `Let this thing go away,' then we're not really complying with the law and I'm not comfortable with that. ... But I've always said that the best way to get rid of a bad law is to enforce it."

Holmes said there have been no such cases because police rarely find themselves in a position to witness private sexual contact in people's homes. Typically, he said, police make arrests for public lewdness -- a more serious class B misdemeanor -- for sex acts in such places as parks and public restrooms.

According to police reports and government sources, officers from the Harris County Sheriff's Department were dispatched to a northeast Harris County apartment complex around 11 p.m. on Sept. 17 after receiving a report that an armed man was in the apartment. Upon arrival, the officers met a man in the parking lot who told them of the armed intruder and directed them to an upstairs unit.

Deputies found no armed man in the apartment and the man who reported it later admitted that he was lying. A government source said the man was convicted of making a false report to officers and sentenced to a jail term.

The two men are scheduled to be arraigned two weeks from today before Justice of the Peace Mike Parrott, whose court is at 14350 Wallisville. For the constitutionality of the case to be tested, it must first make it to county court and then into the state's criminal court system.

"If they want a good case to throw this law out on, they may have their opportunity," Holmes said. "We plan to go forward."

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