Some gay rights attorneys, including Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision. (Washington Blade photo by Michael Key)

Laws that make it a crime for consenting adults to engage in sodomy remain on the books in 17 states and continue to be enforced in several of those states 10 years after the U.S. Supreme Court declared such laws unconstitutional.

Last week, the Montana Legislature gave final approval of a bill to repeal that state’s sodomy law. (A spokesperson for the state’s Democratic governor, Steve Bullock, said Bullock was scheduled to sign the bill on Thursday, which would lower the number of states with sodomy laws from 18 to 17.)

According to LGBT activists and gay rights attorneys, most of the cases in which police and prosecutors enforce sodomy or “crime against nature” statutes involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex in parks or other public places.

But the author of a comprehensive report on the continued enforcement of state sodomy laws released in 2011 by the national LGBT advocacy group Equality Matters said many of the cases involve arrests of men who merely seek to invite another willing male partner to their home for a sexual encounter where prostitution is not involved.

Equality Matters researcher Carlos Maza, author of the report “State Sodomy Laws Continue to Target LGBT Americans,” told the Blade that although sodomy laws apply to straights as well as LGBT people in all but four of the states that have them, LGBT people are targeted far more often than straights.

“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,” the report quotes Michigan gay rights attorney Rudy Serra as saying in the Michigan publication Pride Source.

“Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan,” the report quotes Serra as saying. “LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.”

Serra told the Blade in an interview that someone convicted under Michigan’s sodomy law, called the Abominable and Detestable Crime Against Nature statute, and a separate “Gross Indecency” law, also must register with the state as sex offenders.

He said despite the fact that the Lawrence v. Texas decision renders these laws unconstitutional, the Michigan State Bar, which every lawyer is required to join, has retained written instructions about how juries should deliberate over cases in which a person is charged and brought to trial under the sodomy and Gross Indecency laws.

Gary Buseck, legal director of the New England-based litigation group Gay & Lesbian Advocates & Defenders, said he is not aware of any cases in which the Massachusetts sodomy law has been enforced against people for private, consensual, non-commercial sex since the 2003 Lawrence decision.

But he said the Massachusetts law continues to be used, although rarely, by police against gays in cases of “public” sex.

“We have always understood that in straight ‘lovers’ lanes,’ the police traditionally just shoo couples away and that’s that,” he told the Blade. “With gay men there has traditionally been the ebb and flow of sting efforts or entrapment efforts or enhanced enforcement efforts at what become identified as gay cruising areas.”

Buseck added, “Occasionally, men will still be charged with a felony sodomy [in Massachusetts]. But we have not been aware in recent years of any district attorneys who will go forward with such a case.”

In at least one case in North Carolina in 2008, police arrested two gay men under that state’s sodomy statute for allegedly engaging in consenting sex in the privacy of one of their homes. The case outraged gay activists in the state, who noted it was similar to the Lawrence v. Texas case in which the Supreme Court supposedly overturned state sodomy laws.

A prosecutor eventually dropped the charges against the men after determining that the arrest by officers of the Raleigh Police Department violated the Lawrence v. Texas ruling.

The Raleigh News and Observer and other news media outlets reported that police got involved in the case after the men became involved in an incident of domestic violence and one of them called police.

In the course of a police investigation, one of the men said the other sexually assaulted him, according to media accounts. But a police official told media outlets the incident appeared to be “a case of a consensual act that may have gotten out of hand.”  Instead of charging one of the men with sexual assault, police charged both men with violating the sodomy statute.

The News and Observer reported at the time that the man who claimed he was sexually assaulted said he was grateful that the sodomy charge was dropped but said he had been humiliated over being accused of a crime listed as a Class 1 felony — sodomy — punishable by up to two years in prison.

“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” Maza told the Blade. “And the only real solution is to have those laws taken off the books.”

Added Maza, “Unfortunately a lot of people don’t have the motivation to get that done when things like marriage and employment discrimination are being discussed in state legislatures.”

Maza and gay rights attorneys familiar with Maryland said they were not aware of Maryland’s sodomy law being enforced since the late 1990s. [See separate Blade story on Maryland’s sodomy law.]

The Virginia sodomy law, which also remains on the books, has been enforced against gays and straights charged with offenses related to public sex or sex with minors, attorneys familiar with the Virginia Crimes Against Nature law have said. A federal appeals court ruled last month that the Virginia statute was “facially” or completely unconstitutional and could no longer be enforced under any circumstances.

The Equality Matters report notes, however, that police and prosecutors in some states, including Michigan and Texas, have continued to enforce sodomy laws despite the fact that state courts have joined the U.S. Supreme Court in invalidating those laws.

“Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are viewed as criminals in the eyes of the law,” Maza states in the Equality Matters report. “This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth,” the report says.

Lawrence loophole?

Some gay rights attorneys, including Washington, D.C. attorney Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision.

According to these attorneys, certain prosecutors and judges are claiming a passage in the Lawrence decision penned by Justice Anthony Kennedy, who wrote the majority opinion in the case, provides a broad loophole that gives them authority to continue enforcing their state sodomy laws in cases involving public sex, sex with minors, or prostitution-related sex.

The passage in question states, “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.”

Virginia Attorney General Ken Cuccinelli, who defended Virginia’s sodomy law against a court challenge this year, has cited the so-called loophole in his arguments urging the Fourth Circuit U.S. Court of Appeals in Richmond to uphold the statute. The court instead declared the law unconstitutional based on the Lawrence decision and refused Cuccinelli’s request that the full 15-judge court reconsider the decision handed down by a three-judge panel.

Cuccinelli has yet to disclose whether he plans to ask the U.S. Supreme Court to consider the case as a final appeal.

Gay rights attorneys say that Kennedy’s passage appearing to limit the scope of the Lawrence decision to non-commercial, consenting sex among adults in private appears reasonable on its face. Smith, for example, told the Blade he and the other attorneys who helped him prepare the Lawrence case before the high court did not call for a ruling that went beyond invalidating state sodomy laws for private, consenting, non-commercial sex between adults.

But gay rights attorneys say they do not think Justice Kennedy and the justices who ruled with him intended that gays be singled out for harsher treatment than straights for identical infractions through the enforcement of state sodomy laws.

In the Equality Matters report, Maza points out that prosecutors in some states, especially Louisiana, have used sodomy laws to push for harsher penalties against LGBT suspects using sodomy laws than they would for heterosexual suspects accused of engaging in the exact same behavior, such as prostitution or public sex.

In Louisiana, the report says, people accused of engaging in prostitution could be charged either under the state’s anti-prostitution law or under the solicitation provision of the Louisiana “Crime Against Nature” law, which criminalizes oral and anal sex.

The Crime Against Nature statute carries a longer prison term than the prostitution law, the report says, and unlike the prostitution statute, people convicted under the Crime Against Nature law must register as sex offenders, even if the sex is between consenting adults.

Activists say some of Louisiana’s transgender women and young gay men who have been rejected by their families for being gay or transgender engage in prostitution as a means of survival. Activists say members of these two groups have been among those most frequently charged under the Crime Against Nature law in Louisiana.

The Center for Constitutional Rights, which has provided legal assistance to people charged under Louisiana’s crime against nature law, has criticized law enforcement officials for seeking to enforce the law up until last year, when a state court ruled it could no longer be enforced based on the Lawrence decision.

“[T]he 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,” the group said in a statement.

The Equality Matters report says one of the most dramatic examples of how a state sodomy law can inflict a harsher penalty on LGBT people surfaced in Kansas in 2004. In a case known as State v. Limon, a Kansas state appellate court cited the so-called Lawrence loophole or “exemption” for minors in a ruling upholding a trial court conviction of an 18-year-old male charged with engaging in consensual oral sex with a 14-year-old boy. Both had been living in the same residential school facility for mentally challenged youth.

If the 14-year-old had been a girl rather than a boy, the 18-year-old would have been charged under a Kansas “Romeo & Juliet” law. That law calls for a young adult charged with having sex with a minor whose age is within four years of the young adult to receive a far more lenient sentence under the state’s statutory rape law if the sex is consensual. The 18-year-old, who was charged and convicted under the Kansas criminal sodomy law, was sentenced to 17 years in prison.

His conviction was later overturned by the U.S. Supreme Court on grounds that the Kansas sodomy law was unconstitutional based on the Lawrence decision.

“The reality is that, in many states, enforcement occurs sporadically, typically at the discretion of particular police officers,” said Maza in discussing the rationale for enforcing sodomy laws.

“Even though the laws are clearly unconstitutional, their existence in the legal code gives officers the cover they need to arrest and prosecute gay people,” he said. “Sometimes officers simply choose to ignore Lawrence altogether in an attempt to enforce state sodomy laws as if the decision never occurred.”

Although the majority of sodomy cases are eventually dismissed, Maza said, the fact that people are still charged under the laws, and few people until recently were aware of this taking place, demonstrates that LGBT organizations should take a far more aggressive approach in addressing the issue.

“Only fully repealing these measures ensures that LGBT Americans will be protected from arbitrary and discriminatory legal treatment,” Maza said.

Following is a list of the states that had sodomy laws on the books as of early this week.

Montana’s governor was expected to sign a bill this week to repeal that state’s sodomy law, making Montana the first state to repeal its sodomy statute through legislation in many years.

An asterisk indicates the state sodomy law only applies to gay sex.

• Alabama
• Florida
• Georgia
• Idaho
• Kansas*
• Louisiana
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• Montana*
• North Carolina
• Oklahoma*
• South Carolina
• Texas*
• Utah
• Virginia