Roanoke, VA Defendants Plead
News Planet,
June 11, 1999
SUMMARY: 12 Virginia men arrested for felony solicitation have
entered pleas that will let them put the state's sodomy law on trial.
Twelve of 18 men facing felony solicitation charges from a police sting in a Roanoke,
Virginia park this week accepted plea bargains which allow them to challenge the state's
sodomy law in appellate court. In exchange for their conditional guilty pleas, they will
each be fined $1,000, given a 12-month suspended sentence, and banned from all Roanoke
city parks for the next five years, although these sentences will not be imposed while
their appeals are pending. The other six men, offered the same deal, have elected to face
jury trials. None of the men has been charged for an illegal sex act.
Previously Roanoke had responded to public sex with misdemeanor charges such as
indecency, but in November the city for the first time sought and received felony
indictments against 18 men arrested in Wasena Park. The Roanoke authorities were
encouraged to take the step by a Virginia Court of Appeals ruling in 1996 that rejected a
claim of discrimination in the use of the felony solicitation charge against a gay man in
a Virginia Beach park. The burden of proof is actually easier for solicitation of a felony
than it is for the more commonly prosecuted charge of misdemeanor prostitution; that
requires a "substantial act in furtherance" of the sex act, while the
solicitation needs only demonstration that the individual "commanded, entreated or
otherwise attempted to persuade another person to commit a felony."
Although in at least some cases it was a male undercover police officer who approached
the defendant and steered the conversation to sex, the men are charged with having
solicited the officers to perform sex acts which are felonies under Virginia's crimes
against nature statute. That law prohibits oral and anal sex regardless of the gender of
the parties involved and provides for sentences of up to 5 years imprisonment for acts
between consenting adults -- but none of the 18 men has been charged with actually having
sex, and it's believed to have been two years since a sodomy charge has been prosecuted in
Roanoke. Attorney Sam Garrison, representing half the defendants, insists that they are
facing felony charges for engaging in nothing more than conversation, although police have
indicated that this may not have been true in all 18 cases. Details of the undercover
officers' behavior will not be made public except in the courtroom.
Eight of the men, all clients of Garrison, will definitely be appealing their
convictions on the grounds that the underlying sodomy law is an unconstitutional invasion
of privacy. It's not yet known whether the others will join in that appeal. In early May,
two Roanoke Circuit Judges rejected the privacy argument among other constitutional
questions, as all 18 men sought to have the charges against them dismissed. Those judges
cited the landmark 1986 "Bowers v. Hardwick" decision in which the U.S. Supreme
Court by 5 - 4 upheld Georgia's gay-only sodomy law.
Roanoke police and prosecutors insist that they are only interested in keeping the
parks family-friendly, and that they turned to the felony charges because they'd received
complaints of sex acts occurring blatantly in Wasena Park. They were also disturbed that
many of the men they were finding there had come from out of the area. Police say they
only brought charges against subjects they felt were showing a willingness to engage in
sex right there in the park, although defense attorneys do not necessarily agree.
Gay and lesbian activists and members of Parents and Friends of Lesbians and Gays
protested the November indictments in a meeting with police and prosecutors, charging that
the law was being selectively enforced against gay men since they were presumed to commit
felonious sex, and that the police were not running similar sting operations in venues
where non-gays gather. In technical terms, there aren't grounds to actually charge
entrapment for the Wasena Park arrests, but juries can certainly view the circumstances as
mitigating.
The case of the Roanoke 18 has encouraged veteran gay activist Frank Kameny to bring to
Virginia a technique he used twenty years before to protest Washington, DC's now-defunct
solicitation law: solicit everyone in sight, and particularly police, prosecutors and
judges involved in cases. He started his Virginia campaign on a gay radio show in
December, but was not charged (nor were there any takers for the offer).
Last month, Kameny wrote letters to the two judges who refused to dismiss the Roanoke
cases, to the city's police chief and to the state attorney managing the prosecutions.
Each was invited "to engage with me in an act or acts of sodomy of your choice and as
defined by Section 18.2-361 of the Virginia Code, in some indisputably private place in
the state of Virginia, at a time of our mutual convenience." Kameny also wrote,
"This letter will be published and publicized, with intent to embarrass each of you
individually and by name, and to bring you into public contempt and ridicule nationally,
as well as to make a contemptible laughingstock of your benighted, barbaric, backward
state of Virginia." All four officials told reporters they had received these letters
but that they could not comment with the cases pending. The defense attorneys have
suggested that Kameny's tactics might be more effective in the political realm than the
legal.
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