Virginia Man Challenges Antisodomy Law
The
Advocate, July 14, 2004
A Virginia Beach, Va., man convicted of soliciting sex in
a department store bathroom is challenging the state’s sodomy law, which
prosecutors have continued to enforce a year after the Supreme Court’s
landmark ruling in Lawrence v. Texas. Lambda Legal, the gay rights group that
handled the Lawrence case, filed a petition with the Virginia court of appeals
Monday on behalf of Joel Singson, who was convicted of solicitation of sodomy
last year. His challenge follows a similar petition to appeal that was filed
by another Virginia Beach man in May and a case involving two inmates that was
appealed to the Virginia supreme court earlier this year. At issue in each of
the cases is whether the ruling that struck down a Texas law against sodomy in
private settings invalidates Virginia’s law. Attorney General Jerry W.
Kilgore maintains that Virginia’s law is still enforceable against sodomy in
public places, while opponents say the law should be stricken entirely.
Before the Lawrence decision, 13 states still had laws
prohibiting sodomy between consenting adults, according to Lisa Hardaway,
spokeswoman for Lambda Legal. She said she was aware of only two
states—Virginia and North Carolina—still enforcing their sodomy laws after
the ruling. Singson, 36, was sentenced in February to six months in prison.
His attorney, Greg Nivens, argues in the challenge that Singson should not
have been prosecuted under an unconstitutional law. “There are other laws
that can apply here—the prostitution statute and indecent exposure—that
cover public acts,” said Nivens, senior staff attorney in Lambda Legal’s
Atlanta office. “What’s not available is use of the actual sodomy
statute....The sodomy law is dead.”
The prosecutor in the case, David Laird of the Virginia
Beach commonwealth attorney’s office, disagreed. Since Virginia’s law
makes no distinction between public and private acts or between homosexual and
heterosexual acts, it can still be enforced selectively, Laird said. “If you
can interpret it in a way that is constitutional, a judge is supposed to
interpret it that way,” he said. Kilgore’s office said it is prepared to
defend the law. “Our law is about public acts of sodomy,” said Kilgore
spokesman Tucker Martin. “We’ve made a decision that public acts of sodomy
are still prosecutable, and we’ll stand by that.”
In February the attorney general’s office won an appeal
filed by Trondell Askew, who was convicted of performing sodomy on a fellow
inmate in a prison yard at the Southampton Correctional Center and sentenced
to three additional years. The appeals court ruled that Askew could not object
to the constitutionality of the statute in an appeal if his attorney did not
first raise the objection during his trial. Askew’s attorney, Richard Railey
Jr., said his client was tried and convicted before the Lawrence decision was
handed down. He has appealed the decision to the Virginia supreme court.
The Virginia court of appeals is also deciding whether to
hear the appeal of Andy Tjan, who was convicted of propositioning an
undercover officer in a Virginia Beach department store bathroom last year.
Tjan, 35, received a three-year suspended sentence. His attorney, James
Broccoletti, accused the judge in the case of “legislating” to make the
antisodomy statute enforceable. “I think [judges] are stepping in and
parceling out the statute and making a legislative decision,” he said. “I
don’t think the courts can read into the statute.” The Virginia general
assembly had several bills before it earlier this year that would have
repealed or rewritten the law to conform with the Lawrence decision, but the
majority-holding Republicans rebuffed them all.
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