The American Bar Association adopted a resolution on Feb. 8 calling on states to repeal all laws criminalizing noncommercial sexual conduct between consenting adults in private.
The ABA resolution was aimed at 16 states, including Maryland, that have not repealed statutes known as sodomy laws following the 2003 U.S. Supreme Court decision of Lawrence v. Texas that declared such laws unconstitutional.
“The American Bar Association urges legislatures to review all statutes criminalizing consensual noncommercial sexual conduct, in private and between persons who have the legal capacity to consent, and, to repeal or amend such statutes to criminalize only sexual acts that are nonconsensual, commercial, public, or that involve individuals who lack the legal capacity to consent,” the resolution states.
D’Arcy Kemnitz, executive director of the D.C.-based National LGBT Bar Association, called the resolution a “necessary step forward” in the fight for equality.
“Criminalizing any sexual conduct between two consenting adults goes far beyond the reach that any government or law enforcement body should hold,” she said in a statement.
Gay rights attorneys and LGBT advocacy organizations have pointed to cases in some of the states that haven’t repealed their sodomy laws where LGBT people have been prosecuted under the statutes, even though the Supreme Court ruling supposedly rendered those laws invalid and unenforceable.
Activists following the prosecution of LGBT people under the sodomy laws since the time of the Lawrence decision have said police departments and local courts usually drop or dismiss the charges if attorneys representing the arrested people challenge the law’s validity. But such arrests force defendants to hire lawyers and endure the emotional stress of fighting a charge that never should have been brought against them, activists have said.
The national LGBT advocacy group Equality Matters, which monitors sodomy law cases, has said many of the cases involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex with consenting adults in parks or other public places.
“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” said Equality Matters official Carlos Maza. “And the only real solution is to have those laws taken off the books.”
In Maryland, members of the state legislature, including the seven out gay or lesbian members, have said it would be complicated to repeal the state sodomy law because it is linked to sexual assault statutes that don’t specifically criminalize sexual assault between people of the same gender such as male on male rape.
Gay Maryland Del. Luke Clippinger (D-Baltimore), an attorney and local prosecutor, has said repealing the sodomy law would have to be accompanied by a careful and possibly controversial revision of the sexual assault statutes.
Activists like Maza, however, point to the Virginia Legislature, which in 2013 repealed the Virginia sodomy law by unanimously approving a bill that rewrote part of the state’s sexual assault law. The new law ensures that all forms of sexual assault and statutory rape could be prosecuted while consensual sodomy was decriminalized.
“Rewriting state laws is never simple, but neither should it be considered rocket science,” Kemnitz told the Washington Blade. “Facing adversity in the legislative process should not discourage us from doing what is right and just,” she said in referring to the reluctance of Maryland state lawmakers to repeal that state’s sodomy law.
David Nitkin, a spokesperson for Maryland Attorney General Brian Frosh, told the Blade that Frosh “fully supports repealing Maryland’s sodomy laws in whatever fashion it needs to happen.”
Article 3-321 of the Maryland criminal code, which is known as the state’s sodomy law, states, “A person who is convicted of sodomy [anal sex] is guilty of a felony and is subjected to imprisonment not exceeding 10 years.”
Article 3-322 of the Maryland code lists oral sex with another person or with an animal as a misdemeanor but also provides for a maximum sentence of 10 years in jail and a maximum fine of $1,000 for that offense.
“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 statute states.