Last edited: December 08, 2004

State's Anti-Sodomy Law Used To Prosecute Men Accused of Seeking Sex in Roanoke Parks

Rulings Clear Way For Sex Trials Virginia Is One Of 14 States That Prohibit Consensual Sodomy Among Adults

Roanoke Times, May 4, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

By Laurence Hammack, The Roanoke Times

A state law that makes consensual oral sex a felony is not an unconstitutional invasion of privacy -- at least not when applied to 18 men charged with seeking gay sex in a city park, two Roanoke judges ruled Monday.

The decisions clear the way for potential jury trials in the city's first felony prosecutions aimed at cruising, or the soliciting of gay sex in parks, shopping mall restrooms and other public places.

Roanoke Circuit Judge Richard Pattisall denied a motion, filed by attorneys for 17 of the men, to dismiss the charges on constitutional grounds. A similar decision by Judge Robert Doherty was released Monday in the case of an 18th defendant.

Charges against all the men stem from conversations they had with undercover police officers last year in Wasena Park.

The men are accused of soliciting the officers to commit a felony. The felony in question is nonforcible sodomy, defined by Virginia law as a "crime against nature" that includes oral sex and carries up to five years in prison -- regardless of whether it is committed in public or in private, by homosexuals or heterosexuals.

Defense attorneys had asked Pattisall to dismiss the charges, arguing that the state's sodomy law is unconstitutional on several grounds: that it violates the separation of church and state because it is based on religious views; that it amounts to cruel and unusual punishment; and that it violates the fundamental right of privacy afforded by the state and federal constitutions.

While defense attorneys had argued that the law could be used to invade the bedrooms of consenting couples, Pattisall wrote in his 15-page opinion that the defendants allegedly never proposed that the sex they solicited take place in private.

"Common sense informs one that there can be no expectation of privacy to an act that is performed in public," Pattisall wrote. "The defendants must seek their remedies according to the facts they bring to court, not to imaginable or conceivable facts."

The decisions by Pattisall and Doherty set the stage for 18 separate trials that could last over the summer.

Assistant Commonwealth's Attorney Alice Ekirch said she intends to ask for jury trials. "We're going to let the community decide what the appropriate disposition is," she said.

Sam Garrison, a Roanoke attorney who represents nine of the men, and other defense attorneys have questioned comments attributed to their clients by police. They said that in at least some of the cases, the undercover police officers were the ones who sought out the men, initiated conversations about sex and generally were the aggressors.

Should there be convictions, Garrison said, a final decision will likely rest with an appellate court.

"You might view this as round one of what could be a long, protracted legal battle over the constitutionality of Virginia's sodomy statute," Garrison said.

Virginia is one of 14 states that prohibit consensual sodomy among adults. In recent years, courts in a growing number of states -- including Georgia and Louisiana -- have struck down their statutes.

"I just feel very badly that Virginia is going to be one of the very last states to do away with its felony law" criminalizing sodomy, said Mary Boenke, co-president of the Roanoke chapter of Parents, Family and Friends of Lesbians and Gays, which has been monitoring the cases.

However, both Pattisall and Doherty were unwilling to go against a 1986 U.S. Supreme Court ruling, Bowers vs. Hardwick, that upheld a Georgia law prohibiting sodomy.

"The findings of the U.S. Supreme Court are not wrong under our system of government," Doherty wrote. "They cannot be changed unless the Supreme Court reverses itself, unless Congress changes the law, or unless the Constitution is changed by the citizens."

For years, Roanoke police have brought misdemeanor charges such as indecent exposure and assault against "cruisers" who seek anonymous gay sex in city parks or mall restrooms.

Police have said earlier that they decided to seek felony indictments from a grand jury last November after receiving complaints from citizens about blatant sexual activity in Wasena Park. Defense attorneys counter that their clients engaged in conversation at the most, and that no one has been charged with having sex in the park.

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