Virginia Court of Appeals Affirms Sodomy Statute - Background

Text of the ruling upholding ten appeals from criminal conviction for solicitation to commit oral sodomy in violation of Code §§ 18.2-29 and 18.2-361.

<-- Case Summary	Standing Issue -->

I. BACKGROUND

MORE • More on Sodomy • Texas Sodomy Law Found Unconstitutional • More News, Notes, Tidbits & To Do List

Each appellant moved to dismiss the indictment against him, contending that Code § 18.2-361 is unconstitutional on its face. Each argued, inter alia, that the statute denies the fundamental right to privacy guaranteed by the Constitution of Virginia, that it violates the prohibition against an establishment of religion contained in the First Amendment to the Constitution of the United States and in Article I, Section 16, of the Constitution of Virginia, and that it violates the prohibition against cruel and unusual punishment contained in Article I, Section 9, of the Constitution of Virginia and the Eighth Amendment to the Constitution of the United States. After conducting a joint evidentiary hearing and receiving post-hearing briefs, the trial court denied the motions. This appeal addresses the trial court's ruling. At the hearing on their respective motions to dismiss, appellants called as a witness Roanoke City Police Lieutenant R.E. Carlisle, commander of the police Vice Bureau. Lieutenant Carlisle testified that the police had received numerous complaints of sexual activities in public places, including complaints that members of the public found used condoms littering the ground in city public parks. He testified that children had found condoms, in some cases thinking they were balloons.

Responding to the foregoing complaints, Lieutenant Carlisle sent plainclothes police officers to surveil the public parks. They observed homosexual "cruising" occurring in and between Smith Park and Wasena Park and in the public restroom in Wasena Park. Based on this information, Lieutenant Carlisle sent several male undercover officers into the parks to investigate solicitation to commit sodomy. He instructed the officers: (1) they were not to entrap anyone; (2) they were to investigate "based on their training and see if anyone would offer to commit an act against them, or pay to commit an act against them"; and (3) to be charged, a person "had to show a willingness to carry out the act in the park." The charges that led to these appeals were made pursuant to those guidelines. One person proposed committing oral sodomy in a private place. That person was not charged.

The appellants also called as witnesses a number of sex therapists, clergymen and lay people, who testified to the prevalence, popularity and harmlessness of oral sex between consenting adults, married and unmarried, "gay" and "straight," in their own lives and in modern American culture.

The trial court issued a memorandum opinion explaining its denial of the motions to dismiss. The court first held that Code § 18.2-361 did not constitute an establishment of religion or impose cruel and unusual punishment. It further held that, as applied to the appellants in these cases, Code § 18.2-361 violated no right to privacy recognized by the United States or Virginia Constitutions. It ruled that the appellants lacked standing to complain of the potential application of the statute to other persons or to their private activities.

After the motions to dismiss were denied, nine of the appellants pled guilty and were tried jointly. The evidence in each case, as summarized by the assistant Commonwealth's attorney, disclosed that the respective appellant and an undercover police officer met in a public park and struck up a conversation that led to the appellant's proposing to engage in oral sodomy with the officer. In no case did the appellant specify that the act would occur other than in the public park. In four cases, the appellants reached for and fondled the officers' crotch areas while engaging in those discussions. In another case, the appellant exposed himself to the officer while masturbating in a public restroom. In one case, the appellant suggested "find[ing] a place where no one would see us" before performing fellatio on the officer.