Virginia House Panel: No Sodomy Reform
PlanetOut
News, January 23, 2001
SUMMARY: A state House committee has declined to relax Virginia’s
"crimes against nature" law, and an effort to strike it down in
court may be doomed.
A Virginia bill to decriminalize private oral and anal sex acts between
consenting adults and to reduce those acts committed in public from felonies
to misdemeanors was rejected by the state House Courts of Justice Committee on
January 19 by a vote of 13 to 9. Other proposals in the annual effort to
reform or repeal the state’s harsh old "crimes against nature" law
are expected to meet similar fates, while a legal challenge has lost another
round.
The current Virginia law makes no distinction between heterosexual and
homosexual acts, or between public and private ones; theoretically it could be
applied to married couples in their own homes, although it’s essentially
exclusively prosecuted against acts in public places, and many believe
disproportionately enforced against gay men. The maximum penalty for the class
6 felony is five years’ imprisonment and a fine of $2,500.
Delegate Brian Moran (D-Alexandria), the sponsor of the bill, said, "I
think the public policy of the Commonwealth should not criminalize behavior
between consenting individuals that takes place in private." He refused
to compromise with some committee members who were willing to reduce the
penalty for private consensual acts to a fine with no jail time but were
unwilling to decriminalize them altogether. (That was the strategy of a sodomy
reform bill introduced last year which advanced farther than any of its
predecessors, squeaking through the House by a single vote before failing in
the Senate.) Those committee members agreed with former prosecutor Moran that
the current law as it applies to private behavior is unenforceable, but it was
important to them not to appear to "condone" oral and anal sex.
Moran lambasted those committee members for being bigoted against gays and
lesbians, and they voted against his bill.
As for public acts, Moran believed the law would actually be used more if
it were a misdemeanor rather than a felony. He noted that as a prosecutor his
office had preferred to use the misdemeanor "public indecency"
charge. His bill would have made public sex acts punishable by up to one year
in jail.
Some opponents of reform said the state had a legitimate interest in
preventing sexually transmitted diseases.
But Delegate Dick Black (R-Loudon) took a moral position, declaring that
sodomy reform would "unravel the moral fabric of the Commonwealth of
Virginia." He said, "Changes to the law such as this begin to nibble
away at the edges of laws that have been in place for centuries, not just over
the last twenty years, but for centuries," and indeed Virginia’s law
seems to date back to colonial times. Black added, "Whether this is
changed or not in the law, I will never be an advocate of anal
intercourse." He also shared a story from his youth, in which a male
driver he and a friend had hitched a ride from made advances toward them,
offering this experience as evidence that he is "very sensitive to the
web of protections for children and public decency."
However, Black’s disclosure really had no bearing on Moran’s bill,
under which an adult soliciting a person under 18 years of age would still be
guilty of a crime even for a consensual act. Moran said, "This bill only
applies to consenting adults. Frankly, I’m amazed by the debate that has
gone on."
Court Challenges to Sodomy Laws The most dramatic recent use of the
"crimes against nature" law was police sting in Roanoke’s Wasena
Park a year-and-a-half ago. Although it had been traditional there to use the
"indecency" charge, the men arrested in that sting were charged with
soliciting the felonies of the "crimes against nature" statute,
which is a felony itself. Ten of the men netted in that sting pleaded guilty
for conditional sentences in order to challenge the law in court (see
PlanetOut News of June 10, 1999). In November, a three-judge panel of the
Virginia Court of Appeals quite brusquely rejected their claim, in essence
denying they had any standing to challenge the law. That court announced
January 22 that its full bench will not review that decision, in part because
the three judges had been unanimous. The men’s attorney Sam Garrison said he’ll
file an appeal to the Virginia Supreme Court, but that court is by no means
bound to take it up.
Gay and lesbian legal activists have fared better in states whose
"crimes against nature" statutes apply exclusively to gays and/or
lesbians. One such challenge is now in progress in Arkansas, where the Lambda
Legal Defense and Education Fund is representing seven plaintiffs in a lawsuit
charging the sodomy statute violates their constitutional rights to privacy
and to equal protection under the law. A circuit court judge will hear motions
seeking a final judgment in that case on January 29.
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