April 17, 2013 at 4:40 pm EDT | by Lou Chibbaro Jr.
Lawmakers cautious about repealing Md. sodomy law
Mary Washington, gay news, Washington Blade

Del. Mary Washington said she would be willing to introduce a bill to repeal Maryland’s sodomy law. (Washington Blade photo by Michael Key)

Gay and lesbian residents of Maryland may be surprised to learn that while their state approved a law last year that allows them to marry, it has yet to repeal an antiquated law that classifies their intimate sexual relations as a crime punishable by up to 10 years in prison.

LGBT activists may also be surprised that only one of the eight openly gay members of the Maryland General Assembly confirmed to the Washington Blade that she would introduce legislation to repeal the state’s sodomy law.

“I definitely would introduce it,” said Del. Mary Washington (D-Baltimore City), who is one of five out lesbians serving in the Maryland House of Delegates.

“Now that we have marriage equality, it’s time to go back to old-school anti-discrimination and make sure we are protected at work to the fullest extent and that there aren’t any laws on the books that can be used against us,” Washington said.

The other four lesbian members of the House of Delegates, their two gay male colleagues, and the out gay member of the Maryland Senate, Richard Madaleno (D-Montgomery County) didn’t respond to written questions from the Blade asking whether they would introduce or vote for a sodomy law repeal bill.

Among those who didn’t respond are Del. Heather Mizeur (D-Montgomery County), who is considering running for governor, and Del. Maggie McIntosh (D-Baltimore City), who is considered a potential future candidate for the post of Speaker of the House.

Alan Brody, a spokesperson for Maryland Attorney General Douglas Gansler, said Gansler’s office isn’t aware of the state’s sodomy law being enforced since the 2003 Supreme Court ruling in Lawrence v. Texas, which struck down state sodomy laws.

Others familiar with Maryland’s law enforcement agencies say they aren’t aware of the sodomy statute being enforced since at least 1998, when a court ruled that the statute could no longer be enforced against consenting adults, gays or straights, for private, noncommercial sex.

But Carlos Maza, the author of a 2011 report released by the LGBT advocacy organization Equality Matters, told the Blade police and prosecutors in several states have continued to enforce their sodomy laws under various circumstances, apparently ignoring or blatantly disregarding the Supreme Court or state court rulings.

In his report, “State Sodomy Laws Continue to Target LGBT Americans,” Maza says many cases involving the arrest of an adult charged with consensual sex with another adult are eventually dismissed by courts citing the Supreme Court’s Lawrence decision. But the emotional stress of contending with an arrest and the expense of hiring a lawyer amounts to a penalty against LGBT people ensnared under sodomy laws even if the cases are dismissed, Maza says.

Gansler, who has a strong record of support for LGBT rights, and Maryland Gov. Martin O’Malley (D), who was an outspoken supporter of the marriage equality law, are not expected to seek to enforce the sodomy laws, most LGBT activists agree.

Gansler spokesperson Brody acknowledged, however, that a future attorney general and prosecutors in counties throughout the state could seek to enforce the sodomy statute just as prosecutors have in other states.

Article 3-321 of the Maryland criminal code states, “A person who is convicted of sodomy [anal sex] is guilty of a felony and is subject to imprisonment not exceeding 10 years.”

Article 3-322 of the code states, “A person may not: take the sexual organ of another or of an animal in the person’s mouth; place the person’s sexual organ in the mouth of another or of an animal; or commit another unnatural or perverted sexual practice with another or with an animal.”

The article adds, “A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $1,000 or both.”

Carrie Evans, executive director of the statewide LGBT rights group Equality Maryland, expressed caution that problems could surface if the sodomy law is repealed without making changes in other sections of the state criminal code.

In Virginia, the director of that state’s ACLU chapter, attorney Claire Gastanaga, said Virginia’s sodomy law is sometimes used to prosecute sexual assault cases and cases involving an adult sexually abusing a minor. Gastanaga noted that under Virginia’s criminal code, a sexual assault involving oral or anal sex isn’t always covered under the state’s rape law.

She said the repeal of Virginia’s sodomy or crime against nature law would have to be accompanied by a major overhaul of the criminal code pertaining to sexual assault, something she said lawmakers have been reluctant to do.

Evans said a similar situation may exist in Maryland.

“It’s not as easy as you would think to repeal old laws,” she said. “I would support a review of the code to see what should be repealed,” Evans said, when asked if Equality Maryland would call on the state’s lawmakers to repeal the sodomy law.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • Something here smells. Enough jurisdictions have repealed their sodomy laws through legislative action without bringing about the parade of horribles that Maryland has plenty of guidance. Also, someone must have at least a general idea of what the state criminal statutes say, since they were completely recodified as recently as 2002 (Article 27 of the old code, the Criminal Law Article of the new code).

  • Jean-Jacques, I found that red herring you dropped. You speak very eloquently, but ultimately your assumption that the sole purpose of marriage is procreation is flawed. Additionally, your assumption that 2 people of the same gender can not care for a child as well as 2 people of the opposite gender can is flawed as well. This assumption of yours has been tested – and it has been proven to be false. I will grant you this, your writing is well structured. But in the end an argument based on false statements that sounds eloquent is still, well, false.

  • Sodomy is grody.

  • Maryland’s anti-sodomy law is archaic, and should be emended (or amended, as applicable) to allow any and all forms of sexual contact between consenting adults. The portions of the law against beastiality and other forms of non-consensual sex are, and should remain enforceable.

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