Anti-Sodomy Laws: Still Unacceptable

3130001344_fd9bda8b3bRecently, the Supreme Court threw out Virginia’s attempts to reinstate a state law criminalizing anal and oral sex, putting a spotlight on similar legislation across the United States that targets homosexuality.

Although the Supreme Court ruled such laws unconstitutional 10 years ago, citing rights to privacy and equal protection, at least two states–Kansas and Oklahoma–specifically make gay sex illegal, while nine others forbid anal and/or oral sex for everyone. Granted, such laws are rarely enforced to prosecute consensual sex, but they do send a message that queer people are not welcome even in their own beds.

Supporters hide their intentions behind claims that the laws protect children, and Virginia used the same excuse. When a 47-year-old man solicited a 17-year-old girl for oral sex, the state used its “Crimes Against Nature” statute to put him in jail. Since Virginia’s age of consent is 15, the only way to prosecute was with the same law that makes certain types of consensual sex between two adults a felony.

A lower court found Virginia’s anti-sodomy law unconstitutional in March, but the law still remains on the books. One of the most recent states to repeal a similar law, along with Texas, was Montana. The repeal was finally passed this April after being introduced to state legislators three times, 16 years after a state court ruled its prohibition of “deviate sexual conduct” was unconstitutional.

Montana Dem. Sen. Christine Kaufmann first viewed the proposal as a “clean-up” bill to align the state law with the federal ruling, but said it soon became a symbol because the legislature took so long to approve it. “Words are important,” said Kaufmann, who had been with her woman partner for 22 years. “I feel a whole new attitude toward Montana now this law is passed.”

Attitudes toward gay people are mixed across the U. S. According to the Pew Research Center, 60 percent of Americans believe homosexuality should be accepted by society, and more than 80 percent say they aren’t bothered by being around gay people. Tolerance varies regionally and across demographics, of course,  but shouldn’t determine the existence of archaic and unconstitutional regulations that monitor adults’ consensual bedroom behavior. Furthermore, with so many gay, lesbian and bisexual people still in the closet in fear of public scorn, it’s time to show anti-sodomy laws the door.

Photo of LGBT rights buttons and jewelry from Flickr user Earthworm under license from Creative Commons 2.0.

 

ME EMILYEmily Zak is finishing her B.A. in journalism from the University of Montana as an editorial intern for Ms.

 

 

Comments

  1. Nevermind that these bigoted homophobes are lustfully coveting anal porn on their laptops at home and begging their wives to let them give it a try.

  2. The facts of this article are just wrong.

    First, in Virginia, a 15, 16, or 17 year old can only give consent to someone who is also younger than 18. A 17 year old cannot consent to sexual contact with someone over 18 under Virginia law. It is a misdemeanor for someone over 18 to engage is sexual contact with someone less than 18. Thus, the 47-year old was guilty of a mere misdemeanor when he had sexual contact with the 17-year old. So it is wrong to say or imply, nothing illegal happened here. It was a misdemeanor.

    Second, the defendant was convicted under a felony which makes it a crime for a person over 18 to induce a minor (a.k.a. 17) to engage in a felony (Criminal Solicitation Statute). In VA, the Crimes Against Nature law is a felony. So what Virginia did was try and use that Crimes Against Nature law to get this 47 year old convicted of a serious offense (versus a mere misdemeanor). What the Circuit Court said was the Crimes Against Nature offense is unconstitutional even in the context where an adult commits the misdemeanor sex assault charge of contact with a minor. Because there was no predicate, there was no serious felony and this 47-year old predator gets to walk free.

    WHile I think the general VA Crimes Against Nature law is wrong, vague, and subject to scrutiny, I think a thorough and accurate review of the facts shows that this may have been a lose-lose for the State. Charge the predator with a misdemeanor and he is off in no time. Try to prosecute more seriously and don’t get anything.

    Finally, I understand the view taken by Ms. that these general laws are unconstitutional and offensive. However, I’m kind of taken aback by the fact that there is no reference or discussion about a 47-year old predator soliciting oral sex from an underage girl in a car in a parking lot at night. Predatory? YES, yet no thought to the victim in this case.

    The Crimes Against Nature statute is offensive but so is the lack of regard for the victim in this article.

    • Emily Zak says:

      I would like to dispel any doubt on the validity of this article.

      The age of consent in Virginia is 15, according to Virginia code. Statute § 18.2-63 (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-63) states that a person who entices or has sexual contact with a child older than 13 but younger than 15 is committing a felony if he or she is more than three years older than the child. If the perpetrator is fewer than three years older and still a minor, he or she is committing a misdemeanor.

      Furthermore, an adult (age 18 or older) who solicits or actually has sexual contact with a child under 15 is guilty of a felony, according to § 18.2-370 (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-370).

      In short, all children under 15 are protected from all sexual contact (including penetration, inappropriate touching, oral and anal) under state law. Children ages 16 and 17 are only legally protected from adults who proposition for or have oral or anal sex with them (§ 18.2-361, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-361). They are not protected if adults solicit them for vaginal intercourse.

      The man prosecuted under the state’s “Crimes Against Nature” law does get to walk free, but to whose fault? Virginia law should protect against all child predators, not just those soliciting for and having certain kinds of sex, and not depend on a unconstitutional law that prohibits anal and oral sex acts for everyone, including between consenting adults. The article meant in no way to ignore the plight of the victim.

      • I still believe that in Virginia the age of consent is 18. At 18 you can freely give consent to anyone who is also an adult. I believe that 15, 16, and 17 year olds have close in age exceptions (i.e., can only consent to someone within a few years of age).

        Still, I just think something is off. I guess in reality, assuming you are right about 15 years old being age of consent, is that it’s no one’s fault. If Virginia wishes to allow a 15 year old to consent, then what can they do? Then that’s that under the constitution. Seems wrong to me though. I also think that if the age of consent is 15, how does it further work to criminalize contact? If full age of consent is 15 (or 17 like here), I guess we just have to accept that there is nothin illegal and maybe it could even be argued that if Virginia were to try and protect against this, they would need to increase the consent age. Make consent be 18 for everyone. That could solve the problem but i think it could also backfire.

        Thanks for clarifications. Still uncertain. This case just gives me that icky feeling.

  3. Charles Huckelbury says:

    The troubling part is the 40% who continue to think that LGBT people should NOT be accepted by society. One has to wonder in what century do they spend the majority of their time.

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