A Virginia Beach, Va., man convicted of soliciting sex in a department store bathroom is challenging the state's sodomy law, which prosecutors have continued to enforce a year after the Supreme Court's landmark ruling in Lawrence v. Texas. Lambda Legal, the gay rights group that handled the Lawrence case, filed a petition with the Virginia court of appeals Monday on behalf of Joel Singson, who was convicted of solicitation of sodomy last year. His challenge follows a similar petition to appeal that was filed by another Virginia Beach man in May and a case involving two inmates that was appealed to the Virginia supreme court earlier this year. At issue in each of the cases is whether the ruling that struck down a Texas law against sodomy in private settings invalidates Virginia's law. Attorney General Jerry W. Kilgore maintains that Virginia's law is still enforceable against sodomy in public places, while opponents say the law should be stricken entirely.
Before the Lawrence decision, 13 states still had laws prohibiting sodomy between consenting adults, according to Lisa Hardaway, spokeswoman for Lambda Legal. She said she was aware of only two states--Virginia and North Carolina--still enforcing their sodomy laws after the ruling. Singson, 36, was sentenced in February to six months in prison. His attorney, Greg Nivens, argues in the challenge that Singson should not have been prosecuted under an unconstitutional law. "There are other laws that can apply here--the prostitution statute and indecent exposure--that cover public acts," said Nivens, senior staff attorney in Lambda Legal's Atlanta office. "What's not available is use of the actual sodomy statute....The sodomy law is dead."
The prosecutor in the case, David Laird of the Virginia Beach commonwealth attorney's office, disagreed. Since Virginia's law makes no distinction between public and private acts or between homosexual and heterosexual acts, it can still be enforced selectively, Laird said. "If you can interpret it in a way that is constitutional, a judge is supposed to interpret it that way," he said. Kilgore's office said it is prepared to defend the law. "Our law is about public acts of sodomy," said Kilgore spokesman Tucker Martin. "We've made a decision that public acts of sodomy are still prosecutable, and we'll stand by that."
In February the attorney general's office won an appeal filed by Trondell Askew, who was convicted of performing sodomy on a fellow inmate in a prison yard at the Southampton Correctional Center and sentenced to three additional years. The appeals court ruled that Askew could not object to the constitutionality of the statute in an appeal if his attorney did not first raise the objection during his trial. Askew's attorney, Richard Railey Jr., said his client was tried and convicted before the Lawrence decision was handed down. He has appealed the decision to the Virginia supreme court.
The Virginia court of appeals is also deciding whether to hear the appeal of Andy Tjan, who was convicted of propositioning an undercover officer in a Virginia Beach department store bathroom last year. Tjan, 35, received a three-year suspended sentence. His attorney, James Broccoletti, accused the judge in the case of "legislating" to make the antisodomy statute enforceable. "I think [judges] are stepping in and parceling out the statute and making a legislative decision," he said. "I don't think the courts can read into the statute." The Virginia general assembly had several bills before it earlier this year that would have repealed or rewritten the law to conform with the Lawrence decision, but the majority-holding Republicans rebuffed them all.