Defendants in Missouri Sodomy Case Challenge State’s Ban on Gay Sex
Kansas
City Star, December 16, 2002
1729 Grand Avenue, Kansas City, MO 64108
Fax: 816-234-4926, Email: letters@kcstar.com
By Shashank Bengali, The Kansas City Star
The theater at the back of the eastern Missouri adult
video store was showing a pornographic film. But six men and one woman
weren’t watching.
They were engaged in various sex acts with one another,
say police, when officers raided the store one night in March. The seven were
arrested.
Eager to send a message that such behavior in public
would not be tolerated, prosecutors combed the Missouri law books for a crime
with which to charge the patrons. They found a rarely used sexual misconduct
statute that bans sex between people of the same gender, and charged the six
men.
But they had nothing on the woman involved. She walked
free.
That, to civil-liberties advocates, illustrates the
inequity of the sexual misconduct statute, which makes Missouri one of only
four states—Kansas, Oklahoma and Texas are the others—where homosexual sex
is illegal.
“The facts of this case point out the fundamental
unfairness here,” said Denise Lieberman, legal director for the American
Civil Liberties Union of Eastern Missouri, which is representing four of the
men. “All these folks were in this room, and only some of them get
charged....
“Basically, you’re a criminal based only on your
sexual orientation.”
The ACLU and gay-rights groups are encouraged by news
this month that the U.S. Supreme Court plans to decide whether such laws are
constitutional. The high court said it will review the prosecution of two men
in Texas, which could have implications for laws in 13 states—nine that ban
sodomy for everyone, and the four that punish only same-sex sodomy.
Lieberman said the key issues justices will consider in
the Texas case—the rights to privacy and to equal protection under the
law—match those stemming from the raid on Award Video in High Ridge, Mo., 20
miles from St. Louis. No charges were filed against the store, now called
Maximus Video under new management.
Prosecutors have offered the men a chance to avoid going
to trial by accepting a lesser charge: disturbing the peace, which carries
probation and a fine. But last week the ACLU’s attorney filed a motion to
dismiss the case on the grounds that Missouri’s sodomy law is
unconstitutional.
“It appears,” Jefferson County Prosecuting Attorney
Bob Wilkins said, “they want to fight this.”
Wilkins, recently elected to his third term, said he
isn’t a prude or a homophobe; nor is he trying to legislate morality. He
said he merely is trying to stamp out “a health hazard”—open sexual
activity at a place where the private video booths had buckets and mops and a
sign asking patrons to clean up after themselves.
“I want to stop the behavior,” Wilkins said. “I
don’t necessarily agree with the statute. This isn’t something we’ve
invented to harass gays.”
He would have charged the woman—the wife of one of the
men—if he could have, he said. Missouri law prohibits heterosexual sex that
causes alarm or affront to others, but he said it was unlikely that anyone at
Award Video would have been alarmed by the woman’s behavior.
“This is an adult movie-rental place where you pay
extra money to go into the theater,” Wilkins said. “You know full well
what you’re doing when you go in there.... This isn’t Blockbuster.”
Media seized on news of the March 13 raid, which resulted
in 13 arrests on an array of charges, most of which were dropped later. The
six men saw their names and pictures plastered on St. Louis television
newscasts, and the case became a cause célèbre among gays.
The Advocate, a national gay newsmagazine, wrote that the
story “seemed more likely to come out of the Middle East than the American
Midwest.”
The four defendants being represented by the ACLU
didn’t respond to interview requests made through Lieberman, their attorney.
But Lieberman said the experience has been traumatic.
“These are people who live in small towns where
everyone knows them,” she said. “One of our clients said two big guys
threatened to beat him up. One of the others has a wife who was not there with
him that night. She found out on TV.”
Prosecutions under the Missouri sexual misconduct statute
are rare, legal specialists said. Defendants facing more serious charges
sometimes plea-bargain down to sexual misconduct, a misdemeanor punishable by
at most one year in jail and a $1,000 fine. (In Kansas, a similar law carries
a maximum penalty of six months in jail and a $1,000 fine.)
And prosecutions have been rarer still since 1999, when
an appeals court in Kansas City ruled that the law does not prohibit
consensual sex.
But the appeals court’s decision isn’t binding
outside Missouri’s western district because the state Supreme Court has yet
to take up the consent issue. If the Award Video case goes to trial, some
think it could result in a state Supreme Court decision to clarify the law.
“It’s certainly the most clear-cut example we’ve
seen in a long time of how the law is truly discriminatory,” said Jeff
Wunrow, executive director of a statewide gay-rights group, PROMO, that was
founded in 1986 to fight the ban on gay sex.
“I think we have a good chance of demonstrating that it
violates the equal-protection clause” in the U.S. Constitution, Wunrow said.
But the case would be moot if the U.S. Supreme Court, in
a decision expected in June, finds the Texas sodomy law unconstitutional. Such
a ruling probably would invalidate Missouri’s sexual misconduct statute.
In the meantime, Wilkins said, his offer to the
defendants—to accept probation and a fine—remains on the table. Their
attorneys must decide whether they want to challenge the statute, he said.
“At this point,” Wilkins said, “the law is on our
side.”
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