Virginia Sodomy Sting Challenge Fails
PlanetOut News,
November 27, 2000
SUMMARY: A state appeals court threw out the case of ten gay men busted in a Roanoke
park because it found their privacy rights weren’t at stake.
A three-judge panel of the Virginia Court of Appeals on November 21 unanimously
rejected a constitutional challenge to the state’s 207-year-old "crimes against
nature" law, which makes oral or anal intercourse between consenting adults a felony
punishable by up to five years’ imprisonment, regardless of the gender of the parties
involved and whether the acts are in public or private. The challenge was brought by ten
of eighteen men arrested for solicitation of oral sex in a police sting operation in
Roanoke’s Wasena Park two years ago, with the support of friend-of-the-court briefs
filed by the American Civil Liberties Union (ACLU) Foundation and ACLU of Virginia, the
Lambda Legal Defense and Education Fund, the Liberty Project, and the Log Cabin Republican
Club of Northern Virginia. It’s not yet been determined if a further appeal will be
filed.
Sam Garrison, representing the men arrested in the park, challenged the law on three
grounds. The most significant was that it violated Virginia’s constitutional right to
privacy. But the court agreed with the state Attorney General’s office that the
appeal could deal only with the cases of the men before it, who according to police
testimony had agreed to sex acts in the park, so privacy rights could not be invoked.
Judge Jere Willis, Junior wrote for the court that, "Their solicitations were made to
strangers in public parks. Whatever may be the constitutional privacy rights of one who
engages in sodomy in private, those rights do not attach to one who does the same thing in
public." As for the witnesses Garrison presented to testify to the near-universality
of the practice of oral sex, Willis dismissed them writing, "Contrary to the
appellants’ arguments, sex therapists, married persons, and consenting adults
engaging privately in sexual conduct do not stand to lose by the outcome of this case. ...
Any such person proposing or engaging in sodomy under circumstances supporting a claim of
privacy may, upon discovery and accusation, assert, in his defense, those circumstances
and that claim." Roanoke law enforcement officials testified they had no intention of
enforcing the law for private acts.
A second argument held that the five year sentence for "crimes against
nature" — or their solicitation — constitutes "cruel and unusual
punishment" in violation of both the state and federal constitutions, because it is
much harsher than Virginia’s penalties for adultery or fornication (or their
solicitation). For instance, soliciting or performing heterosexual intercourse in exchange
for money is a misdemeanor punishable by only six months in jail. However the appeals
court cited a state precedent that limits the "cruel and unusual" standard to
"prescribing a punishment in quantum so severe for a comparatively trivial offense
that it would be so out of proportion to the crime as to shock the conscience."
Willis wrote for the appeals court, "We find our consciences shocked neither by
appellants’ sentences [one year imprisonment, $1,000 fine and a five-year ban from
the park, all of which have been suspended pending the appeal] nor by the five-year
maximum sentence provided by the statute."
Elvis Gene DePriest, et al. v. Commonwealth of
Virginia, 2000
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