State Sodomy Laws Continue To Target LGBT Americans

Up until 1962,
gay sex between two consenting adults was a
felony in every state in the United States. So-called “crime against nature” or
“sodomy” laws — the term “sodomy” is a reference to the biblical story of Sodom and Gomorrah —
typically punished violators with lengthy prison sentences, fines, and even
hard labor.  Although these laws typically targeted gays and lesbians,
some statutes were written broadly enough to cover any form of non-vaginal
intercourse, including oral and anal sex between heterosexuals.

Coming seventeen years after Bowers v. Hardwick,
the Supreme Court’s seething antigay decision that upheld a Georgia sodomy
law, Lawrence felt like a sea change. Laws actually
criminalizing the community, many people assumed, were a relic of the past. And
accordingly, the LGBT rights movement shifted gears: litigation, lobbying,
advocacy, and resources in the years since Lawrence have
overwhelmingly focused on civil institutions such as marriage and visibility in
the mainstream media. In short, the mainstream LGBT community stopped talking
about criminal justice.

Continued Enforcement

Nearly a decade after Lawrence, many states have continued
to enforce laws prohibiting private, consensual sex between same-sex adults.

In Michigan, the practice of charging and convicting gay
men under the state’s “Abominable and Detestable Crime Against Nature” or
“Gross Indecency” laws still exists, with violators facing the risk of having
to register as sex offenders and prison sentences of up to 15 years. According
to Rudy Serra, attorney and Chairman of the Executive Clemency Council for the
State of Michigan, police officers continue to aggressively prosecute LGBT people without legal challenge:

The legislature still has not
repealed the sodomy and gross indecency statutes, even after Lawrence v. Texas,
and ultra-conservative (“strict constructionist”) judges still
continue to enforce the “legislative intent” to criminalize gay sex,
regardless of what the U.S. Supreme Court says.

LGBT people in Michigan continue
to be charged with crimes for public speech, in which they let another person
know they are interested in private, unpaid sex with another adult. Bag-A-Fag
(undercover decoy cop) operations, where police officers pretend to be gay men
cruising for unpaid, consensual sex continue in Michigan. LGBT people are still
at risk of spending 15 years in state prison for acts that are perfectly
legal in most other states. [emphasis added]

Even in states where sodomy laws are understood by judges to be
unconstitutional, the presence of sodomy laws can cause gays and lesbians to be
dragged into humiliating, costly, and discriminatory legal disputes.

In 2008, Nelson Sloan and Ryan Flynn were arrested
by the Raleigh Police Department under North Carolina’s “crime against
nature” statue for engaging in private, consensual, homosexual sex.
The charge is considered a Class I felony in the
state and carried a punishment of up to two years in prison. “I have never been
so humiliated in all my life,” Sloan said. “It’s just awful.”

The Raleigh police Captain at the time, T.D. Hardy, explained
that, even though the state’s law against sodomy had been struck down by Lawrence,
his department’s actions were still valid:

“The law is still on the books.
…What the D.A.’s office will do with it, I don’t know.” [The News & Observer, 5/25/08, via Nexis]

The Assistant District Attorney eventually decided to drop the
charges against the two men, citing Lawrence.
Sloan responded by noting that he had nonetheless been punished for consensual
sex:

“I am grateful that the DA’s
office has a better understanding of the Constitution than the Raleigh Police
Department,” Sloan said in a prepared statement Friday. “However, as
long as this law remains on the books, it is a crime punishable by an arrest, a
stay in jail, media attention and a fine of $450.” [The News & Observer, 5/31/08, via Nexis]

After the charges were dropped, Joe Furmick,
the veteran Wake County magistrate who booked the two men, explained why he
chose to continue enforcing the state’s unconstitutional “crime against nature” law:

“I couldn’t care less what
these guys do,” he said. “I’m with the old Victorian lady who said,
‘I don’t care what people do as long as they don’t do it in the street and
scare the horses.’ But you don’t want me to decide which laws to enforce and
which not to. My opinion shouldn’t enter into it.” [The News & Observer, 5/31/08, via  Nexis]

Unfortunately, the practice of improperly arresting gays and
lesbians on “crime against nature” or sodomy charges only to have them later dismissed is not uncommon in states that still
maintain these laws. In Virginia, for example, Attorney General Ken
Cuccinelli’s office defends the practice, stating it was “how the system works.”

In some states, keeping sodomy laws on the books can result in
abuse even in cases where sexual intercourse hasn’t occurred. In 2009, two gay
men were kicked out of an El Paso restaurant for kissing in public. When the men
called the police, officers informed them that “it
was illegal for two men to kiss in public and said they could  be
cited for ‘homosexual conduct,’” even though the state statute only prohibits
“deviate sexual intercourse with another individual of the same sex.” The local
police department eventually claimed that the officers involved were
“relatively inexperienced,” but the incident demonstrates the ease with which
seemingly dormant anti-sodomy laws can quickly turn into weapons to be used
against LGBT citizens.

Lawrence’s Loopholes

Several state legislatures and courts have attempted to exploit
loopholes in the Supreme Court’s decision in Lawrence v. Texas in order
to continue enforcing laws criminalizing homosexuality. At the end of the
majority opinion in Lawrence, Justice Kennedy wrote a paragraph
outlining the parameters of the Supreme Court’s decision:

The present case does not involve
minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where consent
might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. The case
does involve two adults who, with full and mutual consent from each other
engaged in sexual practices common to a homosexual lifestyle. [emphasis added]

This paragraph has been the source of a great amount of ambiguity
for those attempting to determine the constitutionality of state sodomy laws.
It is frequently cited by state and lower federal courts in order to attempt to
limit the scope of Lawrence, especially when dealing with prostitution
and sex with minors. As Joseph Wardenski, a trial attorney at the U.S.
Department of Justice, Civil Rights Division, wrote:

Despite the Lawrence majority’s
broad themes of equality and dignity for gay men and lesbians, several
commentators have argued that the decision’s scope is much less expansive.
Indeed, in several early decisions applying Lawrence, courts have interpreted
the decision quite narrowly. The Court itself has thus far declined to weigh in
on the correct reach of Lawrence.  [Journal of Criminal Law and
Criminology, Vol. 95 No. 4, 6/22/05, via Nexis]

As a result, some states have attempted to justify their “crime
against nature” laws by arguing that their existing laws against crimes
like
prostitution and sex with minors are not written broadly enough to
include oral
and anal sex. According to the North Carolina Gay and Lesbian Legal
Association:

Law enforcement officers and
prosecutors argue that they continue to enforce and press charges for crimes
against nature because the laws against prostitution, sex with minors, and the
like are not worded broadly enough to include oral and anal sex. While this
rationale may seem reasonable at first, the problem is that enforcement of the
crimes against nature law penalizes homosexual men more severely than
heterosexuals for sexual activity in secluded areas. For example, a
heterosexual couple “parking” at night in a deserted area or making
love in the woods will most likely be ignored by law enforcement officers. At
most, they will be charged with indecent exposure, a misdemeanor. Two men in an
identical situation, however, will usually be charged with crimes against
nature–a felony. [emphasis added]

The prostitution exception has caused some state sodomy laws to
evolve into a kind of “gay tax” by allowing police officers and prosecutors to
pursue harsher penalties against LGBT suspects than they would for
heterosexuals. In Louisiana, for example, people accused of engaging in
prostitution can be charged either under the state’s prostitution statute or
under the solicitation provision of Louisiana’s “crime against nature” law, which
exclusively targets oral and anal sex. According to the Center for Constitutional Rights:

Police and prosecutors have
unfettered discretion in choosing which to charge. But a Crime Against Nature
conviction subjects people to far harsher penalties than a prostitution
conviction. Most significantly, individuals convicted of a Crime Against Nature
are forced to register as sex offenders.

[…]

CCR further contends
that the only reason our clients are registered sex offenders is that they were
convicted under the provisions of a 200-year-old statute that condemns
non-procreative sex acts and sex acts traditionally associated with
homosexuality, solely on grounds of moral disapproval. 

Being forced to register as a sex offender can have devastating,
life-long consequences for those who are charged under “crime against nature” laws. Ian Doe, a Louisiana resident who was
kicked out of his house at age 13 for being gay and turned to sex work in order
to survive, explained
how being labeled a sex offender has undermined his ability to find a job and
secure medical care:

DOE: And because
of this charge, I can’t get a decent job now. I can’t do anything because of
the charge … I’ve been everywhere trying to get employment. I’ve been — the minute they find out that I’m a sex offender or
I’m a registered sex offender, they tell me “no
thank you” or they’ll call me back or they’ll get back with me, and they never
do. … I don’t believe that I deserve this
kind of — this kind of punishment. I did four years in prison
for this. While I was in prison for this crime, for this crime that I didn’t
even do that —
all I said was “fifty dollars,” and they put
me away for four years. And while I was in there, I was raped by an officer, a federal officer of the law that worked
at the prison who was dealt with. I also was infected with HIV. I go into
prison, and I get infected, and while — and now I’m out
here dealing with my health. I’m dealing with trying to get a job. … I don’t believe I deserve to be punished like
this. I believe that this should be changed for many
reasons. But for one, we don’t deserve this. I mean, it’s because all
the lack of a judgment of one police officer to
do something, so if he wants to put a
prostitution charge or if he wants to put a “crimes against nature” charge on you. There’s no crime committed.

As Doe’s testimony illustrates, “crime against nature” laws are
especially devastating for the most vulnerable members of the LGBT community: homeless LGBT
youth, most of whom have either been
kicked out of their homes or forced to run away from hostile family members due
to their sexual orientation or gender identity. Once on the streets, many LGBT
teens resort to sex work in order to survive, making them
easy targets for officers looking to enforce sodomy laws.

LGBT youth are also targeted by the “minor exception” that some
courts have argued was established in Lawrence. As Wardenski wrote:

Since Lawrence, however, some
courts have misunderstood and wrongly applied one seven-word phrase in Justice
Anthony Kennedy’s majority opinion, “[t]he present case does not involve
minors,” which this comment will refer to as “the minor exception.”
This phrase has been incorrectly interpreted to limit the reach of Lawrence by
excluding LGBT youth from the decision’s scope, since its proper application is
to preclude adult sex offenders from seeking a liberty interest to engage in
sexual conduct with children–an issue unrelated to sexual orientation.
[Journal of Criminal Law and Criminology, Vol. 95 No. 4, 6/22/05, via Nexis, internal citations removed for clarity]

This exception can play a tremendous role in determining the fate
of LGBT teens engaging in same-sex sexual activity. In State v. Limon
(2004), a Kansas state appellate court applied the exception in order to
prosecute an 18-year-old man who, shortly
after turning 18, engaged in consensual oral
sex with a 14-year-old boy (both of them
lived in the same state mental health facility). Wardenski explained how the
use of the “minor exception” dramatically increased the 18-year-old’s punishment:

If the younger boy had been
female, Kansas’s so-called “Romeo and Juliet” law would have applied,
subjecting the defendant to a sentence of just thirteen to fifteen months. The
Romeo and Juliet statute provided that in statutory rape cases involving
voluntary sexual relations between two “members of the opposite sex”
where the defendant is nineteen or under and less than four years older than
the other youth, the defendant would face significantly shorter prison terms
and more lenient attendant penalties, such as
reduced post-release supervision periods and sex offender registration
requirements. Because the defendant, Matthew
Limon, was of the same sex as the younger boy, however, the Romeo and Juliet
law’s shortened presumptive sentence did not apply, subjecting Limon instead to
the severely long prison sentence and to sex offender registration
requirements.  [Journal of Criminal Law and
Criminology, Vol. 95 No. 4, 6/22/05, via Nexis,
internal citations removed for clarity]

Sodomy laws establish a basis upon which state governments can
punish LGBT people more severely than heterosexuals, even when the crimes they
commit are the same. 

Codifying Anti-LGBT Bias

Even in states where sodomy and “crime against nature” laws are never
enforced, the mere presence of the laws sends a powerful signal about the value
of LGBT members to state and local communities.
These laws reinforce negative stereotypes about homosexuality, same-sex
relationships, and the validity of the lives of LGBT people. As explained in
the Harvard Law Review:

Lawrence… has not eradicated the
criminal statutes themselves nor their potential to inflict harm on gay and
lesbian Americans. Since these laws were always “honored in the breach,” and
wreaked their most insidious effects external to criminal prosecutions, no
great victory can be claimed merely from having these unenforced statues held
unenforceable. [Harvard Law Review, Vol. 118 No.
1070, 2004, via Lexis, emphasis added]

As a result, un-repealed sodomy laws continue to
reinforce damaging stereotypes about gay and lesbian people, branding them as
criminals and justifying anti-gay bigotry. As Christopher R. Leslie, Assistant Professor of Law at the
Chicago-Kent College of Law, wrote:

Sodomy laws exist to brand gay men
and lesbians as criminals. Social ordering necessitates the criminalization of
sodomy, thereby creating a hierarchy that values heterosexuality over, and
often to the exclusion of, homosexuality. This symbolic effect of sodomy
laws is not dependent on their enforcement. Even though very few men and
virtually no women ever suffer the full range of criminal sanctions permitted
under state sodomy laws, these statutes impose “the stigma of criminality
upon same-sex eroticism.”

Based on the mischaracterization
that sodomy laws apply only to homosexuals, sodomy laws are currently justified
as necessary to uphold an anti-gay morality. Any deterrent effect from
sodomy laws is secondary to these primary symbolic effects. For their
supporters, the laws are “seen not as a prohibition to be enforced as such,
but rather as a symbol of societal disapproval.” Supporters argue that
“these statutes may serve an important function even if unenforced.”
But the apparent function is not to condemn homosexual conduct, but homosexual
persons. As one commentator put it, “unenforced sodomy laws are the
chief systematic way that society as a whole tells gays they are scum.” Indeed,
in every state “where sodomy statutes remain on the books, animus against
lesbians and gays has been a major, if not the sole, reason for the decision to
retain them.”  [Harvard Civil Rights-Civil Liberties Law Review,
Vol. 35 No. 103, Winter 2000, via Lexis, emphasis
added, internal citations removed for clarity]

Although Leslie was writing in 2000, his conclusion remains true
after Lawrence. Many state
politicians continue to use anti-gay animus to justify maintaining their state
sodomy laws. In states like Texas and Kansas, lawmakers consistently defeat efforts to repeal their sodomy
laws. One Texan lawmaker said he was “hesitant to do any changing” to the state law books, asserting that it “better reflects the views of a lot of citizens.”

In Montana, where the state Republican Party maintains the
criminalization of homosexuality as part of its party platform, GOP lawmakers recently defeated an effort to eliminate the
state’s sodomy law. During the House Committee hearing on the effort, lawmakers
repeatedly equated homosexuality with bestiality and pedophilia and warned
that gay sex would drive up health care costs by spreading HIV.

This anti-gay animus isn’t limited to state politicians either.
GOP presidential candidate Rick Santorum has repeatedly stated that he believes Lawrence was wrongly decided. National
anti-gay groups like the the American Family
Association (AFA) continue to push for the
re-criminalization of sodomy. Peter Sprigg, Senior Fellow for Policy Studies
with the Family Research Council (which filed an amicus brief in the Lawrence case), advocated a return to criminalization on national
television.

The stigmatizing effect of these laws outlives the anti-gay
legislators that put them into place. As Leslie point outs, sodomy laws can
take on “lives on their own,” guiding public hostility towards LGBT people even
as the LGBT community continues to make advancements at the state and national
level:

Sodomy laws are kept on the books, even though state governments
do not intend to actively enforce them, because the laws send a message to
society that homosexuality is unacceptable. Even without actual criminal prosecution,
the laws carry meaning. Statutes have significance completely independent of
their actual enforcement. Law reflects society and informs it.  Current
generations enshrine their morality by passing laws and perpetuate their
prejudices by handing these laws down to their children. Soon, statutes
take on lives of their own, and their very existence justifies their premises
and consequent implications. [Harvard Civil Rights-Civil Liberties Law Review,
Vol. 35 No. 103, emphasis added, Winter 2000, via
Lexis, internal citations removed for clarity]

[M]ere decriminalization is an inadequate remedy for
the harms inflicted by sodomy laws. As long as the statutes continue to bear
the imprimatur of the state and are enshrined in state penal codes, the state
continues to express a degrading attitude toward a minority group, demeaning
its members… [U]ntil these laws are disavowed, they continue to validate
“private enforcement” – gay bashing by private
citizens. [Harvard Law Review, Vol. 118 No. 1070, 2004, via
Lexis]

Many people first learn about the existence of sodomy laws during
their adolescence. For lesbian and gay individuals, the law tells them, at an
early age, that they are outside the boundary of social acceptance. A common
misunderstanding of the law is that it outlaws homosexuals or bans being gay.
The distinction between conduct and identity is conflated, and one clear
message sent is that homosexuals are delinquents; the law signifies public
abhorrence of lesbians and gays. Even for individuals who keep the distinction
between act and identity fairly clear, the law unmistakably signals disapproval
of homosexuality. This affects individuals’ self-image both in their
reflections of themselves and in their parents’ assessments of them, another
prism through which they perceive themselves. [California Law Review, Vol. 89
No. 643, May 2001, via Lexis, internal citations
removed for clarity]

Moving Forward

As long as we are vulnerable to felony charges for consensual,
unpaid sex with other adults, marriage equality and other goals are
superfluous. Many LGBT people deny the problem because they feel that defending
sex offenders is unpopular and because they buy into the majority’s hysteria
over sex crimes, but our most basic, fundamental rights to liberty, privacy and
intimate association are still at risk.

Source:  http://equalitymatters.org/blog/201108080012