Originally published on Advocate.com July 15 2003 12:00 AM ET
A Mecklenburg County judge threw out two charges against a man accused of soliciting sodomy in a public park as he declared North Carolina's sodomy law unconstitutional. Mecklenburg district judge Nate Proctor ruled Friday the state's law banning anal or oral sex for anyone except married couples was invalidated by a U.S. Supreme Court ruling in June that overturned Texas's sodomy law. Proctor's ruling is not binding. It will be up to higher courts to decide whether the crime-against-nature law should stand after the Supreme Court ruling. Assistant district attorney Brian Prewitt said the case probably will be appealed to the state supreme court. Defense attorney Ray Warren called Proctor's decision "potentially precedent-setting" if a higher court upholds it. "This is the first time any court in this state has found this unconstitutional," said Warren, a former superior court judge who publicly
revealed his homosexuality while still a judge. "I think it's just exactly what a lot of legal minds already felt."
The Supreme Court ruling made it clear police can't arrest people for performing sodomy in a private home, but it didn't directly address public solicitation. Last week Charlotte-Mecklenburg police slightly revised the guidelines they use when arresting people for soliciting sodomy in public places. The new guidelines say police no longer can arrest those they suspect are meeting in public and agreeing to have anal or oral sex in a home or other private place. They say they still will cite those wanting to perform sodomy in a public or unspecified place. "Even if Judge Proctor's opinion is the opinion that the court of appeals or the Supreme Court ultimately hold, all that means is that the statutes need to be rewritten," Prewitt said. "The things that our police department have been prosecuting in recent years are things that could be legitimately prosecuted if the right statute is in place."