Judges: Sodomy Ruling Doesn’t Void Oral Sex Law
La. high court rejects woman’s argument
The
Time Picayune, January 20, 2005
By Gwen Filosa, Staff writer, gfilosa@timespicayune.com,
(504) 826-3304.
A woman accused of soliciting oral sex cannot use the
U.S. Supreme Court’s landmark ruling that struck down a Texas sodomy law on
privacy grounds to escape prosecution, the Louisiana Supreme Court said
Wednesday.
Tina Thomas tried to sell oral sex to an undercover
police officer April 10, 1995, in Jefferson Parish, prosecutors say. Louisiana
law calls such an act a crime against nature and makes it a felony that
carries up to five years in prison.
By contrast, someone accused of offering sexual
intercourse for cash is charged with prostitution, a misdemeanor.
Thomas apparently was arrested in 1995, but failed to
show up for court dates until May 22, 2003, when she pleaded innocent,
according to the state Supreme Court’s ruling. She then argued that the
state’s crime against nature law discriminates unfairly and violates the
right to privacy.
Judge Kernan Hand of the 24th Judicial District Court
agreed and tossed out the charge.
If gay people are entitled to respect for their private
lives, Hand ruled, then the state cannot “demean their existence or control
their destiny by making their private sexual conduct a crime.”
Hand said, “The same rationale must apply to all
persons in deciding their sexual activities and preferences providing the
relationship involves consenting adults.”
Justice John Weimer, writing for a unanimous state
Supreme Court, said it would be “absurd” to apply the federal court’s
ruling to Thomas’ case.
The 2003 ruling by the U.S. Supreme Court over the Texas
sodomy law had nothing to do with minors, public conduct or prostitution.
Instead, that case involved Houston police entering an
apartment for a report of a weapons disturbance and finding two consenting
adults engaged in sex. The men were arrested and charged with “deviate
sexual intercourse,” and waited years until the highest court in the nation
ruled that they had a constitutional right to privacy in their bedroom.
Hand was wrong in applying the decision to the case of an
alleged prostitute, the Louisiana Supreme Court ruled, because the landmark
ruling does not affect prostitution or public sexual conduct.
Though he agreed with his colleagues on the Thomas case,
Chief Justice Pascal Calogero Jr. said the landmark U.S. Supreme Court sodomy
ruling could bolster the argument that Louisiana’s punishment for crime
against nature is unconstitutionally cruel.
But Thomas didn’t claim that the five-year sentence is
excessive, Calogero noted. The court sent the case back to Hand for trial.
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