The Search for Sexual Freedom
The Search for Sexual Freedom; One Man’s Story. (James David Moseley Was in
Prison in Georgia for Sodomy With His Own Wife)
Playboy,
February 1990
The first letter from James David Moseley arrived last April.
"Dear Sir:
"The purpose of this letter is to ask for your help. I am being held in a Georgia
prison for the crime of sodomy (per linguam in vagina). I committed this act in private
with my own wife. She is over the age of 21. I was convicted under the Georgia sodomy
statute for simple consensual sodomy--a law that penalizes non-aggravated, nonviolent
sodomy between consenting adults with a sentence of up to 20 years.
"Although she was an accomplice, my wife was neither charged not tried. I was
sentenced to a total of five years. I’m to serve two years in prison and three more
on probation. Probation in Georgia can be revoked for as little as a traffic violation, a
D.U.I. or an arrest without conviction.
"My life has been virtually destroyed. I have lost everything, including my
family. I am now a convicted felon, convicted of a sex crime. As a result, I will not be
allowed to visit or have custody of my children. I cannot even be paroled to a Georgia
halfway house, since Georgia will not accept convicted sex offenders in its halfway
houses. The state will accept convicted murderers in the same halfway houses.
"I believe the Georgia sodomy statute violates the Equal Protection Clause of the
14th Amendment, is cruel and unusual punishment under the Eighth Amendment and violates
the basic privacy guarantees of the Federal Constitution. I would sincerely appreciate
your help."
Sodomy is against the law in 25 states and the District of Columbia. In 1986, the
Supreme Court upheld the right of Georgia to prohibit and punish consensual sodomy between
gays--the same law that had been used to incarcerate Moseley for heterosexual sodomy.
Defenders of sodomy statutes always say the law is symbolic, that it is never enforced.
The cold steel bars of the Metro Correctional Institution are very real, as Moseley would
testify. How did this injustice come to pass?
After the initial letter, Playboy contacted Moseley at the Metro Correctional
Institution in Atlanta and asked for more information. He sent a second letter and
detailed more of the circumstances: "Thank you for your letters. You’ve restored
some of my faith. I am an honorably discharged Navy veteran with a commendation for saving
the life of another Navy air crewman. I am a member of the P.T.A. After finding evidence
of my wife’s infidelity, I went to see an attorney regarding divorce and custody of
my two sons. He suggested I move out of the house. I rented an apartment but continued to
spend three or four nights a week at the house to be with my sons."
One night, his estranged wife asked him to tie her up and have sex. He tied her feet
and had oral sex with her but felt that something was wrong. He left.
"My wife brought the initial charges. Her reasons? To get custody of our two boys.
She is a vengeful, spiteful person."
According to newspaper clips sent by Moseley, his wife, Better Roberts, believed that
all’s fair in divorce: She accused her husband of two counts of rape, two counts of
aggravated oral sodomy and two counts of aggravated anal sodomy for allegedly violating
her on two separate occasions in February 1988. The jury did not buy her story (in part
because her own sister testified in Moseley’s defense that she had an ulterior motive
in asking to be tied up: She had learned that he had spoken with an attorney and wanted to
stage a pre-emptive strike).
Moseley’s second letter continued: "The prosecutor [a woman] made it seem
like I had committed a capital crime--’Your mouth touched her vagina!’ she
screamed. I didn’t even know what was going on. And I still can’t believe all
this. It was presented to the jury as though I were the lowest, most degraded piece of
scum on earth because my mouth touched her vagina. I felt like some sort of human
sacrifice to appease Georgia’s tribal gods. What hypocrisy! As though the
prosecutor’s mouth had never touched a sexual organ!"
The jury of nine women and three men found Moseley innocent, but Judge William H. Ison,
"a self-described country boy," instructed them to find him guilty of the lesser
charge because on the stand he had admitted having oral sex with his wife.
"It’s on the law books," Ison said. "It’s a criminal offense.
I’m sworn to upheld the laws of the state of Georgia."
Moseley was sentenced to five years; the Board of Pardons and Paroles later ruled that
he had to serve 30 months. At the same time it was releasing 3000 felons--including
robbers and murderers--because of jail overcrowding, the state found a place for Moseley.
We contacted the Georgia A.C.L.U. and discovered that four lawyers were already working
on Moseley’s release. Clive Stafford-Smith, a lawyer with the Southern
Prisoners’ Defense Committee; H. Judd Herndon and Julie Edelson of the A.C.L.U.; and
Michael Mears, mayor of Decatur, Georgia, filed a brief arguing that the ludicrous
application of the Georgia sodomy law violated the equal-protection clause: "Let us
review the state of play in Georgia and decide whether any conceivable person could think
this aspect of the Georgia penal law reasonable.
"Mr. Moseley was eligible for 20 years in prison for his heinous crime. Had he
committed the same offense with his wife after she was dead, he could only have received
half the time. Had he had intercourse in the courtroom during the trial, his punishment
still would have been less. Indeed, had he chosen not his wife, but committed his offense
with a donkey, he could only have received one quarter the sentence. . . . Had Mr. Moseley
committed this crime with a deceased donkey in the public square, he could not have been
sentenced to as long in prison as for having oral sex with his wife. . . . The law is
patently unconstitutional as applied to Mr. Moseley in this case."
In September, a judge overturned Moseley’s conviction, in effect, saying the
statute did not apply to married heterosexuals. Moseley gained his freedom--after 19
months in jail.
Who will be next?
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