Virginia Sodomy Law Challenged
Associated Press, July 13,
2004
By Justin Bergman
RICHMOND—A Virginia Beach 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 U.S. Supreme Court’s landmark ruling in Lawrence v. Texas.
Lambda Legal, the homosexual rights group that handled
the Lawrence case, filed a petition to appeal yesterday 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,
although opponents say the law should be stricken entirely.
Before the Lawrence decision, 13 states had laws
prohibiting sodomy between consenting adults, said Lisa Hardaway, spokeswoman
for Lambda Legal. She said she was aware of only two states—Virginia and
North Carolina—that were 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
Mr. Nivens, senior staff attorney at 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. Because Virginia’s law
makes no distinction between public and private acts or between homosexual and
heterosexual acts, it still can be enforced selectively, Mr. Laird said.
“If you can interpret it in a way that is
constitutional, a judge is supposed to interpret it that way,” he said.
Mr. 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. He has appealed the
decision to the Virginia Supreme Court.
The Virginia Court of Appeals also was 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, was sentenced to a three-year suspended
sentence.
His attorney, James Broccoletti, accused the judge in the
case of “legislating” to make the anti-sodomy 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 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 Republicans rebuffed them all.
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