The Republic of T.

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Why Conservatives “Need” Sodomy Laws

I bet you thought the fight over “sodomy” laws was long over. After all, the Supreme Court struck down state “sodomy” laws as unconstitutional back in 2003, with its historic Lawrence v. Texas ruling. In fact, there’s an argument that Lawrence helped paved the way for repealing the Defense of Marriage Act, just ten years later.

But conservatives aren’t giving up easily. Thanks to the Virginia governor’s race and a Louisiana sheriff, “sodomy” laws are back in the news. 

By now, you’ve no doubt heard about the Louisiana sheriff who refuses to stop enforcing the state’s still-on-the books “sodomy” law, and is using the unconstitutional law to arrest gay men for agreeing to private, unpaid, consensual sex.

An undercover East Baton Rouge Parish sheriff’s deputy was staking out Manchac Park about 10 a.m. one day this month when a slow-moving sedan pulling into the parking lot caught his attention. The deputy parked alongside the 65-year-old driver and, after denying being a cop, began a casual conversation that was electronically monitored by a backup team nearby.

As the two men moved their chat to a picnic table, the deputy propositioned his target with “some drinks and some fun” back at his place, later inquiring whether the man had any condoms, according to court records. After following the deputy to a nearby apartment, the man was handcuffed and booked into Parish Prison on a single count of attempted crime against nature.

There had been no sex-for-money deal between the two. The men did not agree to have sex in the park, a public place. And the count against the man was based on a part of Louisiana’s anti-sodomy law struck down by the U.S. Supreme Court a decade ago.

Now, the men did not have sex in the park or even discuss it. Nor did one of the agree to have sex with the other in exchange for money. We’re talking about two adult males meeting, realizing some mutual attraction, and agreeing to explore their mutual attraction behind closed doors. In other words, this is just two grown folks working out the answer to that age-old question: “Your place, or mine?”

There have been a dozen of these cases since 2011, and apparently the district attorney has declined to prosecute any of these arrests, because no crime had been committed. After all, the state’s “sodomy” has been unconstitutional since 2003, and it’s not against the law to talk about sex in public. (Not yet, anyway.)

Meanwhile, Virginia gubernatorial candidate Ken Cuccinelli is campaigning to preserve Virginia’s “sodomy” law, and has even asked the Supreme Court to reinstate Virginia’s “sodomy” law. (Yes, the same court that just overturned DOMA.)


Why are the Baton Rouge sheriff’s department and Ken Cuccinelli going to bat for “sodomy” laws that have been effectively overturned for ten years? What earthly reason could they have?

In his appeal to the Supreme Court, Cuccinelli claimed that Virginia needed its old “sodomy” law because “”an important tool that prosecutors use to put child molesters in jail,” and its repeal could “threatens to undo convictions of child predators that were obtained under this law.”

But Virginia’s “crimes against nature” law is so broad that Section A of the statute essentially outlaws any and all anal or oral between any “person,” “male or female.” Section B goes on to outlaw various incestuous couplings involving adults and children.

§ 18.2-361

Crimes against nature

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.

B. Any person who carnally knows by the anus or by or with the mouth his daughter or granddaughter, son or grandson, brother or sister, or father or mother shall be guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least thirteen but less than eighteen years of age at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.


Thus, when the U.S. Court of Appeals for the 4th Circuit struck down Virginia’s law in 2005, it added that Virginia could easily pass a law specifically outlawing sex between a minor and adult. Virginia’s criminal code already makes it a felony adults to have sex with certain minors between ages 13 and 15, and criminalizes sex with children under 13. Virginia’s age of consent is (you might have guessed) just 15 years.

That incredibly low age of consent creates a gray area of potential victims between the ages of 15 and 18, whom Cuccinelli say are the reason why Virginia “needs” its old law intact.

Cuccinelli’s spokeswoman said Wednesday that the case “is not about sexual orientation,” but about “using current law to protect a 17 year-old girl from a 47 year-old sexual predator.”

This specific case deals with a man who was prosecuted under the “Crimes Against Nature” statute for having had oral sex with women, a felony offense under that law. The man in the case, William MacDonald, was in his late 40s when he was charged with having consensual oral sex with two young women who were, at the time, ages 16 and 17. While that might be seen as creepy, in Virginia, the age of consent is 15 years old. It is considered statutory rape—a felony offense—to have sex with anyone under that age. Under state law, an adult can be prosecuted for “causing” delinquency by having sex with someone between the ages of 15 and 18, but that is only a misdemeanor. MacDonald was convicted of such a misdemeanor, and his lawyers aren’t challenging that conviction. But they have challenged—so far, successfully—the state’s attempt to prosecute him for violating the “Crimes Against Nature” law.

Meanwhile, the East Baton Rouge sheriff’s department can’t make up its mind exactly why it’s enforcing an old, unconstitutional law. The sheriff claimed he didn’t know the law was unconstitutional. You have to wonder, then, if a guy who’s a decade behind on established law ought to be in law enforcement in the first place.

But then the sheriff department’s spokesperson basically said the department did nothing wrong.

Casey Rayborn Hicks, a Sheriff’s Office spokeswoman, denied that investigators had been misapplying the anti-sodomy law, which remains among the state’s criminal statutes.

“This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature,” Hicks said. “Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted.”

Moore noted that public sex acts and the solicitation of “unnatural carnal copulation” for money remain illegal. But those elements were lacking from these 12 cases, and most of the men were arrested after agreeing to have sex away from the park at a private residence.

“The Sheriff’s Office’s intentions are all good,” Moore said. “But from what I’ve seen of these cases, legally, we found no criminal violation.”

Of course, Cuccinelli and the East Baton Rouge sheriff aren’t stupid. That it, they’re not stupid enough to think that “sodomy” laws are the only or best way to protect children, or that the courts haven’t already determined the validity of such laws.

The Real Reason

It’s not rocket science. If Virginia really wants to protect children, it doesn’t need a broadly-worded law, banning certain sexual acts between any “persons,” including consenting adults — who may be exchanging plenty fluids but aren’t exchanging money in exchange for sex. The state legislature has a couple of options:

  • Raise the age of consent. I won’t attempt to understand why Virginia has such a low age of consent, but the simple solution would be to raise the age of concent to 17 or 18. Boom. Done. If Cuccinelli considers individuals between the ages of 15 and 18 children when it comes to sex acts, and enough Virginians agree, this should be easy enough to do.
  • Pass specific legislation to fill the gap. If raising the age of consent is somehow a problem, then the legislature can pass a law making it a felony to engage in sex with persons who are 15 to 17 years of age. Easy-peasy.

Granted, it’s sometime difficult to get legislation passed, but it would seem worth the effort to protect potential victims and punish predators. It might not even been that troublesome.

I can’t imagine either of the above would be controversial. Other than predators, who doesn’t want to protect children? Virginia can accomplish this without preserving a law that applies not just to minors, but also to adults engaging in private, consensual, unpaid sexual activity.

The East Baton Rouge sheriff’s department is a bit more transparent. No arguments here about protecting children, unless you count “protecting” them from overhearing two adults talking about sex in public.

As ThinkProgress points out, the Louisiana Attorney General issued a statement after the Lawrence ruling that the state’s anti-sodomy laws could not be enforced, save for circumstances of bestiality or prostitution.

It’s for that reason that current District Attorney Hillar Moore III has refused to prosecute these cases: As the law stands, no crime has occurred. While solicitation of sexual acts for money and public acts of sex remain illegal, Moore told the newspaper that “those elements were lacking from these 12 cases.” Further, “most of the men were arrested after agreeing to have sex away from the park at a private residence.”

The sheriff’s office told the paper that the issue was with Manchak Park, where the meet-ups were scheduled, “it’s the nature of the location not the nature of the relationship,” Rayborn Hicks said. There were no sexual acts committed at the park.

“They started a conversation and the officer invited him back. That’s a conversation that could happen anywhere,” Equality Louisiana’s Bruce Parker told Sunday. ”It’s the equivalent of me asking you out in a Post Office.”

The Baton Rouge Recreation and Park Commission has “not had a number of complaints” on the issue of actual sexual activity taking place in public parks, precisely because there are already laws against it, and undercover investigations have already curtailed public sex in the parks.

There’s no law against talking about sex in public parks or anywhere else, nor against simply issuing an invitation to engage in private sexual activity. And the sheriff’s department doesn’t’ have the right to arrest anyone just for asking “Your place or mine?”

The real reason why conservative want “need” sodomy laws is simple. They use such laws to harass gays, simply because they can.

Demeaning The Lives of LGBT People

In 2003, the Supreme Court ruled that Texas’s “sodomy” law “demeans the lives of homosexual persons,” and declared it constitutional. That’s precisely what the East Baton Rouge sheriff has been doing with Louisiana’s statute, and why Ken Cuccinelli wants Virgina’s statute back in play.

As I wrote above, Virginia doesn’t need its law reinstated if it really just wants to protect children ages 15 to 17 from sexual predators. Simple, uncontroversial legislative action will achieve that, without criminalizing consenting adults for engaging in private, unpaid sex.

There are currently 22 states with 22 states with anti-sodomy laws still on the books, including 13 that specifically target same-sex activity. Cuccinelli wants Virginia back in that club for the same reason that conservatives in these states keep such laws on the books, even though they know they can’t enforce them.

Of course, conservatives want to send a political “message” about where they stand on LGBT equality. But these laws, in a climate of increasing support for LGBT equality, make it possible to “demean the lives” of LGBT people, and thereby send an even more effective message to the LGBT communities in those states.

Even if the state laws are unconstitutional, and thus no “crimes” are ever prosecuted, gays in those states could be subject to arrest, fines, and perhaps even public humiliation and ruinous exposure in states that are a long way from “tolerance” let alone equality for LGBT people. Most of the men arrested in Baton Rouge are said to have been middle-aged or older, and not out to their friends and families. Simply being arrested put these men at risk of being publicly “outed,” with potentially disastrous results where their families and careers are concerned. (You can still be fired for being gay, after all.)

One man who was arrested in 2011, and had his charges dropped, described the whole experience of being arrested and taken to jail as “intimidation.” Well, that’s the idea.

Back in the not-so-fabulous 1950s, as author Neil Miller detailed in Sex-Crime Panic: A Journey to the Paranoid Heart of the 1950s, Iowa arrested and incarcerated 20 gay men in a mental hospital as “sexual psychopaths,” based on a law passed after two sex-related child-murders that had nothing to do with homosexuality. The men had nothing to do with either crime.

They were there because they were homosexuals, “sexual deviates” in the popular language of the time. They were among 20 men from Sioux City and the surrounding towns who had been rounded up and declared to be criminal sexual psychopaths and sentenced to the state mental hospital at Mount Pleasant for an indefinite period of time — until they were “cured.” They were there because in Sioux City, a little boy named Jimmy Bremmers and a little girl named Donna Sue Davis were dead: victims of two terrible sex crimes. These men had nothing to do with those crimes; the authorities never claimed they did. However, in Sioux City, indeed in the entire state of Iowa, the public was clamoring for action. Something had to be done. So Doug and Duane and the other men were arrested and put in a locked ward in a mental hospital far from Sioux City. They were scapegoats in a “sex crime panic.” …

They were there because five months after the second murder, the state legislature passed a bill intended “provide for the confinement of persons who are dangerous criminal sexual psychopaths.” And in the 1950s that definitely meant people who were attracted to or even had sex with members of their own gender, even if it was private and consensual. Of course, the men of Mount Pleasant saw their lives and reputations either ruined or all but ruined, and the state wasn’t sure exactly what to do with them. The compulsory “Friday Night Dances” with female patients may have been an attempt to “cure” the men, but it comes off as just bizarre.

A few years later, in Greensboro, NC 32 men were rounded up and arrested for the “crime” of being “homosexual.”

On Feb. 4, 1957, a Guilford County grand jury emerged from its closed session and issued a bundle of indictments of a scope unlike any before or since — against 32 men accused of being homosexual. After witnesses named the men during police interrogations, the suspects were tried one by one in a Greensboro courtroom for crimes against nature, almost exclusively with consenting adults.

The now-obscure episode, which some longtime residents came to call “the purge,” was the largest attempted roundup of homosexuals in Greensboro history and marked one of the most intense gay scares of the 1950s.

Unlike sweeps of subsequent decades, involving raids on public parks and gay bars, Greensboro’s 1957 trials focused on private acts behind closed doors. The purpose, in the words of the police chief, was to “remove these individuals from society who would prey upon our youth,” and to protect the town from what a presiding judge called “a menace.” Some 32 trials in the winter and spring of 1957 would end in guilty verdicts, 24 of them resulting in prison terms of five to 20 years, with some defendants assigned to highway chain gangs.

In both of these stories from the 1950s, much as in Baton Rouge, men were arrested on little more than cruising and verbally agreeing to meet up for private sexual activity — with an undercover cop. Some were arrested based on little more than association, as police poured over the address books of men they’d already arrested, interrogated, and intimidated into naming others.

This isn’t the 1950s. Thank goodness. Thanks to the Supreme court, same-sex couples married in states that legally recognize same-sex marriages (ironically enough, including Iowa), are legally recognized (and protected) by the federal government as married couples. Still, in states like Virginia and Iowa, conservatives won’t stop trying to turn back the clock as far as  they can. That is, as far as the law allows.

Still, it reminds me of a scene from Mississippi Burning, when the young FBI agent tells the mayor and the sheriff how behind the rest of America they are.

Mayor Tilman: Fact is, we got two cultures down here: a white culture, and a colored culture. Now, that’s the way it always has been, and that’s the way it always will be.

Anderson: Rest of America don’t see it that way, Mr. Mayor.

Sheriff Ray Stuckey: Rest of America don’t mean jack shit. You in Mississippi now.

The rest of America, however, eventually has a say because Mississippi is in the rest of America. So is Baton Rouge. After being deluged with Facebook comments, the sheriff’s department released a statement on Sunday.

The goal of our statement was to express our intent to the public, which was to keep the parks safe. We admit, however, the approach needs to change. We are not making excuses, simply stating we will learn from this, make changes and move forward. We will be working with all branches of government to find a better solution for keeping our parks safe. Thanks to all for their input.
The Sheriff’s office apologizes that the way these investigations were handled made it appear that we were targeting the gay community. That was not our intent. The Sheriff’s Office also apologizes to anyone that was unintentionally harmed or offended by the actions of our investigations. While sections of La. R.S. 14:89, Crimes Against Nature, have not been removed from the Louisiana law code, they have been deemed unenforceable and unconstitutional. The Sheriff’s Office will not use these unconstitutional sections of the law in future cases. We are committed to working with all branches of our government, as well as the LGBT community, to find acceptable ways to keep our community safe.
The difference is that more and more of the public is with us. Ken Cuccinelli and the Baton Rouge sherriff may be figuring that out. Reinstating and enforcing old, unconstitutional sodomy laws won’t turn back time to the 1950s or beyond. But that’s essentially why conservatives think they need them — to hold back the tide of history.

One Comment

  1. Someone should tell “conservatives” that if they want to go back to the past, they’ll need a time machine, they’ll have to build it out of bootstraps, and they can’t take anything invented after 1850.

    They like the toys and the ease of living, and it completely escapes them that none of that would exist in the world they want.