Since Lawrence v. Texas was decided 10 years ago, laws prohibiting oral or anal sex (sodomy) have been unconstitutional. And it is a pretty basic precept that asking someone to engage in a lawful act cannot itself be unlawful. Except, apparently in Louisiana. The Baton Rouge Advocate reports that the local sheriff’s office is using the Louisiana sodomy law to target men in a local gay cruising area, not for public sex, but for private conversations. The local district attorney is refusing to prosecute any of those arrested. Somebody’s gonna get sued — I hope.
UPDATE – The sheriff has now apologized. I’m still waiting for that lawsuit.
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.
The July 18 arrest is among at least a dozen cases since 2011 in which a Sheriff’s Office task force used the unenforceable law to ensnare men who merely discussed or agreed to have consensual sex with an undercover agent, an investigation by The Advocate has found.
District Attorney Hillar Moore III said his office refused to prosecute each one of the cases because his assistants found no crime had occurred. After inquiries from the newspaper last week, he arranged to meet with Sheriff’s Office investigators to discuss the implications of the Supreme Court ruling.
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.”
Advocates for civil rights and the LGBT community expressed outrage last week, saying the task force unfairly targeted gay men who were humiliated by their arrests. “It is frustrating that the police are using their resources to pursue issues like this and arrest people for attempting to pick someone up and go home with them,” said Bruce Parker, of Equality Louisiana. “It’s perfectly legal, and we would have to close down every bar in Baton Rouge if that weren’t the case.”
Hicks took issue with that analogy, saying a park “is not the place to initiate or attempt to initiate sexual relations.”
“The issue here is not the nature of the relationship but the location,” she said. “These are not bars. These are parks. These are family environments.”
Others advocating for the lesbian, gay, bisexual and transgender community said there should be no ambiguity over the legality of same-sex relations.
“It’s really unfortunate that police are continuing to single out, target, falsely arrest and essentially ruin the lives of gay men in Baton Rouge who are engaged in no illegal conduct,” said Andrea J. Ritchie, a civil rights attorney.
Peter Renn, an attorney with Lambda Legal, the prominent gay rights organization, said the pattern of “unlawful arrests over multiple years” suggests authorities are using the stings as a means to harass gay men.
“The fact that this has been going on for a two-year period is unbelievable,” Renn said. “This is basically like the police putting up a sign that says ‘Please sue me.’ ”
Tommy Damico, a defense lawyer who represents the man arrested this month, said he had been prepared to challenge the attempted crime against nature charge under the 2003 U.S. Supreme Court ruling in Lawrence v. Texas, which legalized same-sex sexual activity. Moore, however, said he has already decided formal charges will not be brought in the case.
“For the Sheriff’s Office to be setting these kinds of sting operations up is a waste of time because they can’t prosecute these things,” Damico said. “I think the statute itself has incredible problems.”
Hicks said deputies arresting the men in these cases swore affidavits of probable cause that were “presented to a judge for review to set a bond.
“In the cases we discussed, bond was set,” she said. “In effect, the judges concurred that there was probable cause for an arrest.”
Louisiana’s crime against nature statute — R.S. 14:89 — has a long and controversial history dating to 1805. It is still used today in part to criminalize bestiality, as evidenced in 2010 when local authorities charged a man seen trying to have sex with a dog.
But the statute also includes language banning “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.” That prohibition, however, was struck down by the U.S. Supreme Court, a ruling that prompted then-state Attorney General Richard Ieyoub to issue a statement saying the state’s anti-sodomy law would be unenforceable except for provisions banning sodomy for compensation and sex with animals.
“If two adult men can have consensual oral sex in private, they can invite another adult man to do that in private,” said William Eskridge, the Yale Law School professor. “So even if there were a verbal offer and acceptance, it would be constitutionally protected, so long as no money was involved and the men were of age.”
The 12 arrests were made by the Special Community Anti-Crime Team, a Sheriff’s Office task force that also conducts prostitution stings and Internet operations targeting child predators.
Its surveillance of parks comes in response to complaints of lewd conduct.
Hicks said the operations that led to two arrests this year came after the park ranger telephoned the task force commander directly.
Cheryl Michelet, a spokeswoman for the Baton Rouge Recreation and Park Commission, said the parks have “not had a number of complaints on this issue.”
Hicks said there is not a “rampant problem” because undercover investigations have deterred sexual activity. One man, for instance, was caught masturbating in the woods at Manchac Park last year and was charged with obscenity.
Manchac Park has long been known as a popular rendezvous for gay men “cruising” for anonymous sex. In 2005, Sheriff’s Office spokesman Fred Raiford declared that “people can’t walk down the trails (of the Blackwater Conservation Area) because there is too many people in there soliciting sex.”
In 2007, the Baton Rouge Police Department conducted a sting at Forest Park and summarized the results in a news release that listed five people arrested on various counts — including four booked with crime against nature or attempted crime against nature. Court records show one of the men was charged with possession of marijuana, while another ultimately pleaded guilty to disturbing the peace.
Tulane University professor Peter Scharf said these operations raise questions about how local law enforcement is using resources at a time of high violence and increasing acceptance of gay rights.
“In the current cultural climate, who would be shocked or offended” by same-sex relations, Scharf asked. “I think we’re past that now, so it’s a question of how do you align police tactics with the norms.”
Even before the sea change brought about by the Supreme Court ruling, jurors had shown skepticism about the local stings.
A man arrested in the late 1990s was acquitted at trial as jurors puzzled over whether the undercover deputy or suspect initiated the sexual discussion. “I saw it as entrapment,” the jury foreman said at the time.
Most men arrested in recent stings are middle aged or older and have apparently not told their family and friends about their sexual orientation.
“I’m assuming they think the large majority of people are just going to plead guilty and pay some fine,” said another 65-year-old man who was arrested in February 2011 and had his charges dropped because in that instance, the arrest was unjustified. The man, who spoke on the condition of anonymity, did admit he has had sex with men in the past at Manchac Park.
“The whole procedure of being arrested and being brought to jail is just intimidation,” he said. “I’ve tried to block everything I possibly can about it out of my consciousness.”