Originally published on Advocate.com August 19 2003 11:00 PM ET
Prosecutors plan to pursue sodomy charges against 26 men despite a recent U.S. Supreme Court ruling that legal experts believe invalidates Virginia's sodomy law. The indictments issued July 21 followed a three-month investigation of alleged public sodomy and solicitation to commit sodomy at an adult bookstore in Harrisonburg. They also came about a month after the Supreme Court struck down
Texas's sodomy law. Legal experts generally agree that the high court's ruling means laws banning
sodomy in private are unconstitutional but that laws against public sodomy can still be enforced. In Virginia, however, the state's Crimes Against Nature statute does not distinguish between public and private activity, leading some civil rights groups and gay rights advocates to argue that Virginia's entire law is unenforceable even against public sodomy.
Kent Willis, executive director of the American Civil Liberties Union of Virginia, told The Roanoke Times, "Our interpretation is that any charges under the sodomy law are invalid at this point." Other misdemeanor charges were available to the police, Willis said, including lewd and lascivious
cohabitation, obscene exhibitions and indecent exposure. Dyana Mason, executive director of Equality Virginia, a gay rights organization, suggested that the indictments reflect the underlying discriminatory nature of the statute. "My concern [is] that this law can still be used to harass and intimidate gay men," she told the Times.
Virginia attorney general Jerry Kilgore believes the Supreme Court decision does not preclude prosecutions for public sodomy or solicitation to commit sodomy, spokesman Tim Murtaugh said Monday. However, Murtaugh said, Kilgore has not issued an official opinion on the subject. Although many observers believe the issue requires action by the state general assembly, at least one influential legislator disagreed. House majority leader Morgan Griffith (R-Salem) said he believes the law is fine as it is, and he said lawyers on the Virginia Crime Commission agree. But even the prosecutor in the Harrisonburg cases believes everyone would be better off if the general assembly rewrote the law to clarify what's legal and what's not in the wake of the Supreme Court ruling in the case of Lawrence v. Texas.
Harrisonburg Commonwealth attorney Marsha Garst said the men arrested in Harrisonburg were not targeted because they were homosexuals. The police would have cracked down on the activity just as strongly if heterosexuals were having sex in a public place such as a bookstore, she added. But drawing the line between public and private sodomy in Virginia is complicated by the way Virginia's law is written, said Sam Garrison, a Roanoke attorney and gay rights activist. Like most states, Virginia has a "savings clause" in its state code to allow for the preservation of the remainder of a law when part of it is struck down by a court ruling. Virginia's law banning sodomy has only one part--a blanket prohibition of oral and anal sex--with no distinction between those acts occurring in public or in private.