In a little-noticed development, the Maryland House of Delegates voted 133 to 5 on Feb. 20 to repeal the state’s sodomy law, which criminalizes same-sex sexual relations between consenting adults with a penalty of up to 10 years in prison.
The vote took place 17 years after the U.S. Supreme Court declared such laws unconstitutional.
The Maryland Senate’s Judicial Proceedings Committee held a hearing on the bill the same day the House of Delegates approved it, but the chair of the committee, Sen. William Smith Jr. (D-Montgomery County), has not said whether he supports or opposes the bill.
Sandy Papp, a spokesperson for the committee, told the Washington Blade on Tuesday that the sodomy repeal bill is one of many bills scheduled for discussion and a possible vote at a committee “voting session” scheduled for Friday, Feb. 28.
A Senate committee vote of approval is needed before the bill can be sent to the full Senate for a final vote on whether the sodomy law should be repealed.
The law, known as the Sodomy and Unnatural or Perverted Sexual Practices Act, calls for a sentence of up to 10 years in prison for anyone convicted of sodomy, which is defined as anal sex and other sexual practices, including oral sex or sex with an animal.
As of 2019, Maryland was one of 16 states that had yet to repeal statutes criminalizing sodomy, including consensual same-sex sexual relations. The sodomy laws in some of those states also criminalize oral and anal sex committed by heterosexual couples.
According to the Baltimore Sun, a report accompanying the sodomy repeal bill as introduced in the House of Delegates and Senate states that more than 300 violations of the Maryland sodomy law were filed in state courts in fiscal year 2019. The Sun says the report shows that 15 people were sentenced in 2019 under the sodomy law, but it doesn’t give specific information about what the sentences were and in what part of the state they occurred. The Blade couldn’t immediately obtain a copy of the report.
The report, as noted by the Baltimore Sun, appears to contradict assertions by state officials in the past that the Maryland sodomy law was not being enforced except in a few rare instances since the U.S. Supreme Court handed down its 2003 Lawrence vs. Texas decision. The decision declared state sodomy laws unconstitutional in cases involving noncommercial sex between consenting adults in a private setting.
Some states that had not repealed their sodomy law following the Lawrence decision, including Louisiana, used the laws to prosecute people charged with prostitution related offenses. In the case of Louisiana, LGBT activists said prosecutors used the sodomy law in addition to the state’s law banning prostitution against male and transgender sex workers because the sodomy law had a more severe penalty than the prostitution statute.
Prosecutors have argued that the Lawrence Supreme Court ruling doesn’t apply to cases involving prostitution, public sex, or nonconsensual sex.
Virginia repealed its sodomy law in 2014, with gay State Sen. Adam Ebbin (D- Alexandria) playing a lead role in pushing for the repeal.
A list of the sponsors of the Maryland sodomy repeal bill in the House of Delegates and Senate, which is posted on the legislature’s website, shows that Del. Luke Clippinger (D-Baltimore City) is the only one of the six gay or lesbian state lawmakers who signed on as a sponsor of the bill.
The gay and lesbian members of the legislature, called the General Assembly, who did not become a sponsor of the bill, include Sen. Mary Washington (D-Baltimore City) and Delegates Maggie McIntosh (D-Baltimore City), Bonnie Cullison (D-Montgomery County), Anne Kaiser (D-Montgomery County), and Gabriel Acevero (D-Montgomery County).
The recorded roll call vote on the bill in the House of Delegates shows that each of the five gay or lesbian delegates voted for the repeal bill’s approval on Feb. 20.
Attorneys familiar with the Maryland sodomy law have said that similar to Virginia, the Maryland law is linked to the enforcement and prosecution of the offenses of sexual assault and rape. They have pointed out that some of the state’s existing sexual assault statutes did not provide for the prosecution of same-sex sexual assault cases because the sodomy laws had always been used for such prosecutions.
Similar to the Virginia sodomy repeal legislation, the Maryland repeal bill revises the state’s sexual assault laws to ensure that all sexual assault related offenses, including male-on-male rape cases, could be prosecuted while consensual sodomy between consenting adults is decriminalized.
In written testimony in support of the bill to repeal the Maryland sodomy law before the Senate Judicial Proceedings Committee, the ACLU of Maryland noted that Maryland was among the states that had yet to repeal its sodomy law following the landmark U.S. Supreme Court decision declaring such laws unconstitutional.
“While they may seem like antiquated laws that technically still exist but are not actually enforced, these laws have been frequently used to discriminate against the LGBTQ community,” the ACLU’s testimony says.
“As long as Maryland’s law is on the books, it will continue to endanger LGBTQ people, and leave them vulnerable to employment discrimination, unfair attacks in child custody cases, and being labeled as criminal,” the ACLU states in its testimony. “States across the country have been repealing their sodomy laws since 1961. It is time for Maryland to join them, and live up to our state nickname, ‘The Free State,’” the ACLU testimony says.
Free State Justice, the Maryland statewide LGBT rights organization, has stated on its website that it also strongly supports the bill to repeal the Maryland sodomy law. The group’s executive director, Mark Procopio, couldn’t immediately be reached to find out if it is taking steps to lobby State Sen. William Smith to release the bill from his committee to allow a final vote on the bill in the Maryland Senate.
Montgomery County transgender rights advocate Dana Beyer told the Blade Smith is “absolutely not transphobic or homophobic.” She said she is surprised that Smith hasn’t moved to arrange for his committee to immediately approve the sodomy repeal bill and send it to the full Senate for final approval.