Connect with us

National

Sodomy laws remain on books in 17 states, including Md. and Va.

Trans women, gay men prosecuted under ‘loophole’ in Supreme Court ruling

Published

on

Paul Smith, gay news, Washington Blade
Paul Smith, gay news, Washington Blade

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
Continue Reading
Advertisement
6 Comments

6 Comments

  1. Norman Murphy

    April 18, 2013 at 6:27 pm

    Idaho is a Mormon state whose Church pumped millions into the campaign against Prop, 8 in California. The Church of Christ of Latter Day Saints should be considered what it is, a political organization without any status as a non-profit, and taxed going back to their first attempts to get involved in political issues by directing their members how to vote on various issues and to give money to causes against equality of all Americans.

  2. Peter Kneipp

    April 18, 2013 at 8:04 pm

    Gay people visiting the USA need to be as careful as if they were visiting Iran or Saudi Arabia. Yet USA is supposed to be the land of the free and of democracy.

  3. JOHN GRIMM

    July 11, 2017 at 6:45 pm

    As the newest card carrying member of the ACLU I sincerely believe that
    if conservative republican politicians had any brains,
    they would be civil libertarians.

  4. JOHN GRIMM

    July 18, 2017 at 9:26 pm

    Since conservative republican politicians are writing new sodomy laws
    once again that will discriminate against gay and bisexual men
    and lesbians, the best way to get even with conservative republican
    politicians and the religious right, in my opinion is to vote uncommitted
    in the 2020 republican presidential primary then vote for all democrats
    in the 2020 presidential general election.

  5. JOHN GRIMM

    October 10, 2017 at 8:52 pm

    A politician with heterosexual tendencies regardless of gender
    that would enact legislation to legalize heterosexual sodomy,
    and make homosexual sodomy illegal is lower to a pedophile.

Leave a Reply

Your email address will not be published. Required fields are marked *

National

Alarming numbers of Texas Trans kids in crisis over litany of anti-Trans bills

“Under the guise of protecting children- Texas legislators are directly harming thousands of transgender & nonbinary youth”

Published

on

LGBTQ youth protest anti-Trans bills at the Texas Capitol building (Photo Credit: Equality Texas)

NEW YORK – The Trevor Project received nearly 4,000 crisis contacts from transgender and nonbinary youth in Texas in 2021, with many directly stating that they are feeling stressed and considering suicide due to anti-trans laws being debated in their state.

This new data comes during a year when Texas lawmakers have proposed nearly 70 anti-LGBTQ bills, including more than 40 bills that specifically target transgender and nonbinary youth — far more than any other state.

The Texas State Senate passed its anti-trans sports ban SB3 this week, and the companion bill HB10 is now moving forward in the Texas House. 

Republican Texas Governor Abbott has prioritized SB 3 and called for a third consecutive special session of the legislature to consider this bill, which would ban transgender student-athletes from playing on sports teams consistent with their gender identity.

“The Trevor Project’s crisis counselors have been hearing from transgender and nonbinary youth in Texas who are scared and worried about anti-trans laws being debated in their state — and some have even expressed suicidal thoughts. This is a crisis. We urge Texas lawmakers to consider the weight of their words and actions — and to reject HB10/SB3,” said Amit Paley, CEO and Executive Director of The Trevor Project.

  • Between January 1 and August 30, 2021, The Trevor Project received more than 10,800 crisis contacts (calls, texts, and chats) from LGBTQ young people in Texas looking for support. More than 3,900 of those crisis contacts (36%) came from transgender or nonbinary youth.
  • Crisis contacts from LGBTQ young people in Texas seeking support have grown over 150% when compared to the same time period in 2020.
  • While this volume of crisis contacts can not be attributed to any one factor (or bill), a qualitative analysis of the crisis contacts found that:
  • Transgender and nonbinary youth in Texas have directly stated that they are feeling stressed, using self-harm, and considering suicide due to anti-LGBTQ laws being debated in their state.
  • Some transgender and nonbinary youth have expressed fear over losing access to sports that provide important acceptance in their lives.

“As a transgender young person in Texas, this new data from the Trevor Project is not surprising, but it’s nonetheless harrowing and alarming to see this representation of the detrimental impact Texas Lege is having on our community — especially our kids. Lawmakers and proponents of bills like SB3 and HB10 should be alarmed by these statistics, too,” Landon Richie a Trans youth activist and GenderCool Youth Leader from Houston told the Los Angeles Blade.

“Under the guise of protecting children and promoting fairness, Texas legislators are directly harming thousands of transgender and nonbinary youth, denying them the dignity, respect, and childhoods that they deserve. It’s never an exaggeration to say that the passage — and merely debate — of these bills will cost lives,”  Richie added.

National mental health organizations like The Trevor Project and state LGBTQ equality groups including Equality Texas and Transgender Education Network of Texas (TENT) are raising concerns about the impact of such legislation on the mental health and wellbeing of transgender and nonbinary youth.

The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health found that more than half (52%) of transgender and nonbinary youth seriously considered suicide in the past year and 1 in 5 attempted suicide. Further, Trevor released a new research brief earlier this month on LGBTQ youth participation in sports, which found that a majority of LGBTQ young people (nearly 66%) do not actively participate in sports — with many citing fear of bullying and discrimination as a key factor for not participating.

If you or someone you know needs help or support, The Trevor Project’s trained crisis counselors are available 24/7 at 1-866-488-7386, via chat at TheTrevorProject.org/Help, or by texting START to 678678. 

Continue Reading

National

2nd largest school district in Utah bans Pride & BLM flags as ‘too political’

“We have to have a politically neutral classroom, and we’re going to educate the students in the best possible way that we can”

Published

on

Davis School District Offices in Farmington Utah (Photo Credit: Davis School District)

FARMINGTON, Ut. – Administrators this week in the Davis School District, which is Utah’s 2nd largest school district with 72,987 students, banned LGBTQ Pride and Black Lives Matter flags, saying they are ‘politically charged.’

According to the Salt Lake City Tribune, Davis Schools spokesperson Chris Williams told the paper; “No flags fly in our schools except for the flag of the United States of America.” Williams later walked that statement back adding a clarification that some of the Districts schools have flags from sports team or international countries which are considered “unrelated to politics.”

“What we’re doing is we’re following state law,” said Williams. “State law says that we have to have a classroom that’s politically neutral.”

Amanda Darrow, Director of Youth, Family, and Education at the Utah Pride Center in Salt Lake City, told multiple media outlets the school district is “politicizing the rainbow flag” which doesn’t belong on a political list.

“That flag for us is so much more,” said Darrow. “It is just telling us we’re included in the schools, we are being seen in the schools, and we belong in these schools.”

KUTV CBS2 News in Salt Lake City checked with the Utah State Board of Education. In an email, spokesman Mark Peterson said, “There is nothing in code that specifically defines a rainbow flag as a political statement so it would be up to district or charter school policies to make that determination.”

The local Utah chapter of the American Civil Liberties Union also weighed in saying in a statement;

Whether or not a school district has the legal ability to ban inclusive and supportive symbols from classrooms, it is bad policy for them to do so,” the advocacy organization said in a statement. “Utah schools have an obligation to ensure that all students, regardless of their sexual orientation or gender identify, feel welcome inside a classroom. We urge school administrators and teachers to adopt policies that make all students feel safe and included.”

Williams insisted the policy is not meant to exclude anyone and that all students are loved and welcomed – they just want to keep politics out of school he told the Tribune and KUTV.

“We have to have a politically neutral classroom, and we’re going to educate the students in the best possible way that we can,” said Williams.

A Utah based veteran freelance journalist, writer, editor, and food photographer weighed in on Twitter highlighting the negative impact of the Davis Schools decision on its LGBTQ youth.

Davis County School District bans LGTBQ and BLM flags as ‘too political’

Continue Reading

National

Non-binary person reports assault by Proud Boys near Portland

‘They nearly killed me’

Published

on

Juniper Simonis (Photo by Mariah Harris)

It was a typical day for Juniper Simonis. The freelance ecologist decided to break from work for lunch at about 3 p.m. to take their service dog, Wallace, to the local dog park and grab a bite to eat.  

But a planned peaceful afternoon quickly turned ugly. Simonis says they survived a gang assault of about 30 perpetrators in Gresham, Ore., a suburb outside of Portland. The Oregon resident encountered the group for only minutes but suffered a concussion, sprained jaw, extensive car damage and verbal assaults, they said. 

“They nearly killed me,” they said.

Simonis said they turned into a parking lot to pick up lunch in Gresham, Ore., and stumbled upon a rally that included several members of the Proud Boys — a far-right, ultra-nationalist organization known for its anti-LGBTQ, anti-feminism and neo-fascist ideologies. 

There was a “Flag Ride” right-wing rally in a parking lot earlier that day. Simonis was under the impression the event had ended after checking reports on Twitter. After pulling into the lot, originally to look for lunch options, Simonis saw a large gathering still in the lot. 

Simonis decided to take pictures of what was happening to post online to warn others and was intentional in keeping their distance, they said. As Simonis was preparing to leave the area, they yelled from inside the car, “Fuck you, fascists, go home.” 

“I did not expect this to escalate into violence,” they said. 

The attack itself only lasted about three minutes, Simonis said. Simonis was quickly surrounded by several people and physically blocked from leaving the lot. People stepped in front of the parking lot exit, then a car was moved to barricade Simonis. People began to shout homophobic slurs at Simonis, they said. 

“I’m in serious trouble now and I know it,” they said. 

Simonis was then punched while inside their vehicle and was briefly knocked out. They regained consciousness a few seconds later, and a cinder block was thrown at the car and shattered the back window of their car inches away from their service dog, Wallace. 

Simonis got out of the car to assess the damage and make sure their service dog was safe. They quickly got back in their car and was able to leave the lot by maneuvering around the blocked exit, Simonis said. 

Wallace, Juniper Simonis’ service dog. (Photo by Mariah Harris)

Looking back at the photos and videos Simonis took before the assault, Simonis said they saw people looking into the camera and acknowledging them taking photos. 

“I honestly don’t know if I hadn’t said anything, that … things would have gone any different,” they said. 

Last year, Simonis was targeted and arrested by federal police in Portland during the tumultuous Black Lives Matter protests in the city. They were denied medical attention, misgendered, jumped and aggressively handcuffed while taken into custody. 

Simonis is still working through legal proceedings in a multi-plaintiff lawsuit. 

A witness to the event called the Gresham Police Department, which was only a few blocks away from the incident. But the call went to voicemail and the witness did not leave a message, Simonis said. 

Another witness called 911, Simonis said, which led to an officer calling Simonis about 45 minutes after the accident to take a report.   

In the police report obtained by the Blade, Simonis is consistently misgendered. Simonis’ sex is also listed as “unknown” in the report. The incident was labeled as vehicle vandalism. 

Simonis said the conversation with the officer was filled with victim-blaming and the officer wrote in the report that Simonis should avoid “approaching groups of this nature.”  

“At no point in this conversation does he treat me as an actual victim of a crime,” Simonis said.

The Gresham Police Department did not respond to a request for comment. 

Weeks after the assault, Simonis is struggling mentally and physically, they said. 

The concussion makes working on a computer virtually impossible because of light sensitivity and trouble focusing, Simonis said. The pain caused by the sprained jaw makes it difficult to focus, as well. 

Simonis is not able to begin physical therapy for their jaw until November because of long medical wait times, they said. The cost to repair the car damages will be about $8,000, as well, they said.  

The times where Simonis is able to focus are usually taken up by piecing together what happened that day, they said. 

“The part of my brain that I use for work has been hijacked functionally by the part of the brain that needed to know what happened to me,” they said. “There is such a painful need to understand what happened to me.”

Because of past traumatic events, like the experience of being in federal custody last year, Simonis said processing and living with the trauma is a bit easier to handle. But their ability to work will be forever changed yet again, they said. 

“I’m not able to work at the pace that I used to work at before I was assaulted by DHS. I’ll never be,” they said. “And this is just a further knockdown.” 

The trauma of the event has increased Simonis’ hyper-vigilance, as well. 

“Every time I hear a car go by, I’m double-checking,” they said. 

Even though Simonis has the tools to process and live with the immense trauma, they will never be the same person, they said. 

“They fucking changed my life forever. Point blank,” they said. “Not just mentally, but physically and physiologically. I can’t go back to where I was before. I’m lucky that I survived.”

Simonis has reported the attack to the FBI and is pursuing legal action with two specific goals in mind: to heal and to prevent similar crimes from happening.

“I am somebody who believes in abolishing the carceral system and the justice system as it exists and policing,” Simonis said. “But also a 37-year-old trans and disabled person who somehow managed to survive this long. And so naturally has become pragmatic about the world.”

Because of the reaction of the Gresham Police Department, Simonis did not want to work with local officers and instead went to the federal level. But because of the alleged assault by agents in Portland last year, this decision wasn’t easy for them.

Perpetrators in the assault threatened to call the police on Simonis,  even though Simonis did not commit a crime. Reporting the crime to the federal level is also a layer of protection, they said. 

“All of this is forcing my hand,” they said. There is no easy decision in the situation, they added. 

“We all know that crimes are underreported. We hear about it all the time,” they said. And there are reasons why people don’t report crimes and they’re totally understandable. A lot of victims are very concerned about what will happen if they break anonymity. In my situation, I’ve already broken anonymity.”

With recent arrests and crackdowns on the Proud Boys and other hate groups in the United States, Simonis is bracing for a long process. 

“This isn’t just going to go on a shelf,” they said. 

Continue Reading
Advertisement
Advertisement

Follow Us @washblade

Sign Up for Blade eBlasts

Popular