Appeals Court to Review Sodomy Law Case Stems From Arrests of Men in a Roanoke Park
Roanoke Times,
December 15, 1999
P. O. Box 2491, Roanoke, VA, 24010
Fax 703-981-3204
Email: response@roanoke.infi.net
By Lawrence Hammack, The Roanoke Times
For the first time in 20 years, a Virginia appellate court has agreed to review the
constitutionality of a state law that makes oral sex between consenting adults a felony.
The case, which stems from the arrests of gay men in a Roanoke park, will test a law
that has been both hailed as a legitimate way to curb public sex acts and railed as an
archaic invasion of privacy aimed at homosexuals.
This week, the Virginia Court of Appeals agreed to hear the appeals of nine men
convicted of soliciting sodomy during conversations with undercover police officers posing
as gay "cruisers" in Wasena Park.
Although police have defended their use of the law as a way to discourage cruisers from
turning city parks into unsavory pickup spots, the appeals will attack the broader
implications of the statute.
The law, referred to as "crimes against nature," applies to all consenting
adults, whether heterosexual or homosexual, who engage in oral sex in public or in
private.
"I'm just optimistic that the Virginia appellate courts will not begin the 21st
century by doing something that no state appellate court has done in a decade – to
uphold a sodomy statute that criminalizes all oral sex indiscriminately," said
Roanoke attorney Sam Garrison, who represents the nine men.
The case now goes to a three-judge panel of the Court of Appeals that will hear
arguments next year.
Alice Ekirch, an assistant commonwealth's attorney who prosecuted the Wasena Park
solicitation cases and urged the Court of Appeals not to take up the case, could not be
reached for comment Tuesday.
Legal observers said the mere fact that the intermediate appellate court agreed to hear
the case is encouraging news for those who say it is time for Virginia to join the growing
list of states that have abolished their anti-sodomy laws.
"This is an antiquated law that is frequently used against gays and
lesbians," said Kent Willis of the Virginia chapter of the American Civil Liberties
Union.
But in a 45-page petition to the Court of Appeals, Garrison paints the case as not just
a gay issue but one that affects "the fundamental right of 4.5 million adult
Virginians to be free from governmental intrusion into areas where they have a reasonable
expectation of privacy."
The appeal takes shots at Virginia's centuries-old law from several angles: that it
violates privacy rights guaranteed by both state and federal Constitutions; that it is
based on religious grounds and thus violates the separation of church and state; and that
its potential five-year prison sentence subjects defendants to cruel and unusual
punishment.
As the trial date approaches for the last of 18 men charged in the Police Department's
crackdown on cruising, the results in Roanoke Circuit Court have been mixed.
Of 12 men who pleaded guilty, nine hope to reverse their convictions on appeal. Of the
cases contested in Circuit Court, one man was convicted by a jury and sentenced to 60 days
in jail. Two were acquitted by juries, and two more had their charges dropped by
prosecutors after the earlier acquittals. A final defendant is scheduled to go on trial
next week.
In earlier cases, testimony has shown that some men exposed themselves and made overt
sexual actions while offering to commit sodomy. Others, however, did no more than talk in
vague terms about sex with undercover officers who pursued the topic aggressively.
For those who appealed their convictions, the biggest challenge may be convincing the
Court of Appeals that they have legal standing to overturn a law that affects not just
them, but all adult Virginians.
In 1979, the last time a higher state court heard a challenge of the sodomy law, the
Virginia Supreme Court ruled that a man arrested in Richmond had no such standing,
Garrison said.
Since then, a growing number of states have recognized that defendants arrested for
alleged public sex acts are entitled to fight the law not just as it was applied to them,
but as it potentially could be applied to others.
Thirty years ago, all 50 states had laws that forbade consensual oral sex. Today,
Virginia is one of 17 states with such a law still on the books.
Laurence Hammack can be reached at 981-3239 or laurenceh@roanoke.com.
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