Last edited: January 01, 2005

No Locks on the Bedroom Door: Sodomy Laws Carry a Skeleton Key in Texas

The International Gay And Lesbian Human Rights Commission, November 9, 1998
For Immediate Release
CONTACT: Sydney Levy, IGLHRC, +1-415-255-8680
1360 Mission St, Ste 200
San Francisco, CA 94103 USA
Fax: +1-415-255-8662

In a startling move, police in Houston, Texas have jailed two adult men for engaging in consensual "homosexual conduct" in a bedroom. Although the men performed the acts in a private apartment belonging to one of them, sheriff's deputies apparently witnessed the conduct and arrested them. The men face charges under the state's 119-year-old sodomy law.

Such laws exist in almost half the American states, but prosecutions are rare. However, this case demonstrates the laws can be arbitrarily enforced.

"This is just unbelievable that in 1998, this sort of arrest could happen," said Mitchell Katine, attorney for one of the men.

The case may well be a landmark test of the right to privacy in American law. A decade ago, the United States Supreme Court held that even consensual homosexual acts committed by adults behind closed doors can be subject to criminal prosecution. This case may give courts an opportunity to revisit the question, determining whether gays and lesbians have any rights to privacy--or to equal protection--under the law.

The two accused men were seized on September 17 by two Harris County sheriff's deputies responding to a false report of an armed man at an apartment complex. On arriving at the building, the deputies encountered a man who directed them to an upstairs apartment unit. The man later admitted the story of an intruder was untrue, and has been convicted of making a false report to an officer. However, in the unit, deputies apparently discovered two men engaged in a sexual act.

The men were held in jail for several hours before being released on bail. They face an arraignment November 20. Their names have not been released.

Chapter 21, Sec. 21.01 of the Texas Penal Code provides that "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The offense is a Class C misdemeanor, punishable by a fine of up to $500.

As of early 1998, according to the American Civil Liberties Union, 22 American states still retained so-called "sodomy laws" which penalize private, consensual sexual acts between adults. These laws are phrased in different ways, variously criminalizing "crimes against nature," "unnatural acts," "sodomy," or "buggery," among other terms. Many do not specifically mention the genders of the participants. Texas' law is one of six which target only same-sex acts. (The other such laws are in Arkansas, Kansas, Maryland, Missouri, and Oklahoma).

In 1987, the U. S. Supreme Court delivered a devastating blow to lesbian and gay rights by finding such laws constitutional. In Bowers v. Hardwick, the court ruled that the right to privacy does not protect "homosexual sodomy."

Nonetheless, subsequent legal challenges to some state sodomy laws have moved gradually forward, aided by more recent Supreme Court decisions cautiously favorable to lesbian and gay concerns.

Challenging the Texas law, however, has been hampered by the lack of prosecutions under the statute. Lawyers could cite no other recent case in which consenting adults were prosecuted for private sexual activity. In a 1994 civil suit, City of Dallas v. England, a Texas appeals court held that the sodomy law was probably unconstitutional. The state Supreme Court later ruled that it had no jurisdiction over a civil challenge to the law, however, because the plaintiffs had not actually been prosecuted under it.

Even without prosecutions, however, the sodomy law has stigmatized and damaged lesbian and gay lives. In 1997, a supervisor for Texas's Child Protective Services agency (CPS) removed a three-month-old baby from lesbian foster parents, saying "Homosexuality is against the law and CPS staff were knowingly condoning it."

That incident paralleled a celebrated 1995 court case in Virginia, in which the state Supreme Court deprived Sharon Bottoms of custody of her son because she was a lesbian. The Court cited her status as a criminal under the state's sodomy law.

Scott Long, Research and Advocacy Director at the International Gay and Lesbian Human Rights Commission, stated that "These statutes don't just fly in the face of privacy and common sense. They violate international law."

Mr. Long referred to the United Nations Human Rights Committee's 1994 decision in Toonen v. Australia. "That case was extremely similar: a state within the federal union of Australia clung to a law criminalizing gay and lesbian sex. The United Nations ruled that the law was wrong because it violated the right to privacy, and because it discriminated on the basis of sexual orientation. The Australian state was finally forced to repeal the law. On both counts, the state of Texas today also stands accused."

The 1994 United Nations decision held that sodomy laws violate provisions of the International Covenant on Civil and Political Rights (ICCPR). The United States has also ratified the ICCPR, and is bound by its provisions.

"This is the fiftieth anniversary of the Universal Declaration of Human Rights, the basic international document enshrining people's liberties worldwide," Mr. Long said. "After five decades of rhetoric about rights, it's time for the U.S. and its prosecutors and police to get on the bandwagon--and out of the bedroom."

Texas activists expressed hope the arrests would provide new momentum to eliminate the state's sodomy law. Clarence Bagby, president of the Houston Gay and Lesbian Political Caucus, said, "We need to get this off the books."

Harris County District Attorney John B. Holmes Jr. promised activists will get their chance in court. "We plan to go forward" with the prosecution, he said.

"Sodomy laws create second-class citizens," IGLHRC's Mr. Long observed. "They also give the state a dangerous weapon to destroy people's fragile privacy. This case shows all too clearly what these laws really mean."

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