Sodomy laws that will not die

by on April 5, 2013  •  In Constitutional law, Criminal law
eqm 20110808 sodomy

This year is the 10th anniversary of Lawrence v. Texas, the Supreme Court decision that found the Texas sodomy law unconstitutional. So – no more worries about sodomy laws, right? Wrong. There are still sodomy laws on the books in 18 states; most of these laws are felonies. You might think they would be dead letters after Lawrence, but think again. Although they cannot be enforced in situations involving consensual adult sexual relations in a sequestered private space with no exchange of money, many courts have refused to recognize that serious constitutional questions of equal treatment under law can arise in other situations as well.

A week from today, on Friday the 12th, the Williams Institute at UCLA Law School is hosting a half-day conference on “Lawrence + 10″ examining where LGBT law stands 10 years after this watershed opinion.  One panel will address the continuing criminalization of consensual sexual (homo or hetero) conduct that falls within the definition of “sodomy” (oral or anal sex).The problem is illustrated by the Nevada “infamous crime against nature” law. This week, the ACLU filed a federal court challenge to this law because its effect is to penalize the same conduct differently depending on whether same-sex or different-sex partners are involved. The complaint states:

The ‘crimes against nature’ statute creates a double standard that treats identical conduct differently based solely on whether the sexual activity involves two persons of the same sex. Under Nevada law, sixteen is the legal age of consent to engage in ‘ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio.’ N.R.S. § 200.364. The statute setting the age of consent, N.R.S. § 200.364, makes no distinctions between heterosexual or homosexual activities. But a separate statute that criminalizes solicitation of a minor to engage in ‘crimes against nature,’ singles out the identical conduct for severe criminal penalties when it involves two ‘persons of the same sex.’ N.R.S. § 201.195.2. The ‘crimes against nature’ statute thus enables prosecutors to circumvent the age of consent established by N.R.S. § 200.364 and prosecute identical conduct under N.R.S. § 201.195 if, and only if, the sexual conduct involved a same-sex couple.

Similar issues of intrinsic inequality in the post-Lawrence regime of sex crime statutes arise in situations involving the pervasive and irrational criminalization of sexual conduct by persons who are HIV positive with no regard to whether this conduct poses a risk of transmission or the abusive use of sodomy charges against sex workers, which occurs when the sodomy law is a felony charge and the anti-prostitution law is a misdemeanor. The Louisiana sodomy law, like several others, required those convicted of its violation to register as sex offenders, which will literally brand a person for life. These draconian penalties led to a successful challenge to the Louisiana law by the Center for Constitutional Rights in cooperation with Women With a Vision, a New Orleans health advocacy group, and the Loyola Law School Clinic.

If you’re interested in these issues, come to the Williams event if you are in southern California; if not, check back on that web site for video of the panel.



One Response to Sodomy laws that will not die

  1. Jay April 5, 2013 at 10:43 AM

    The Nevada prosecution is particularly absurd (and unconstitutional). If I recall correctly, when the Supreme Court decided Lawrence, it also directed Kansas to reconsider the case of a young man name Limon who had been sentenced to prison for a long time because of his relationship with another minor. Kansas had a “Romeo and Juliet” law that would have made the consensual relationship Limon had engaged in perfectly legal were his partner a female instead of a male. I think that despite protests from the Kansas attorney general defending the prosecution of Limon, his conviction was reversed and he was released. That seems very similar to the Nevada case. I just wish the minor who is bringing that case would ask for far more than $1 in damages.

Leave a Reply

Your email address will not be published. Required fields are marked *