Virginia Is Not For Lovers

Gay man faces jail time under sodomy law for publicly soliciting sex

A Virginia state court has allowed a sodomy prosecution to proceed despite a U.S. Supreme Court decision handed down in June that invalidated all of the nation’s sodomy laws.

“It’s always a concern when you have public officials decrying a Supreme Court decision saying they don’t agree with and at the same time doing everything they can to try and undermine it,” said Greg Nevins, senior staff attorney at the Lambda Legal Defense and Education Fund.

The case concerns Joel D. Singson who was arrested in March for allegedly asking an undercover police officer to engage in sodomy in a public bathroom. Lambda joined Jennifer T. Stanton, Singson’s lawyer, in challenging the arrest citing the June 26 decision in Lawrence v. Texas that struck down the nation’s 13 remaining sodomy laws including Virginia’s.

“The basic argument is two-fold,” Nevins said. “There is no sodomy statute in Virginia. That doesn’t exist anymore after the Supreme Court decision so therefore there can’t be a prosecution for solicitation of sodomy.”

Singson also challenged his arrest on First Amendment grounds saying the any solicitation was protected speech.

“The law on the books would allow them to prosecute a conversation in a bar,” Nevins said. “What they are basically saying is we reserve the right to prosecute some requests for solicitation. The problem is that the law reaches all of that speech. What they are saying—yes on it’s face it does say that—but we are only going after some solicitations. The First Amendment doesn’t allow you to play that game.”

Stanton was unavailable for comment.

On October 29, Circuit Judge Edward W. Hanson Jr. let the case against Singson proceed and set a trial date for December 3.

“I feel to rule any other way would be to fly in the face of the Supreme Court,” Hanson was quoted as saying in the Norfolk Virginian-Pilot.

The Lawrence decision only applied to private behavior.

“It is invalidated as to private conduct, but this is public conduct,” Hanson said. “One can only imagine what would happen if I were to rule the other way.”

The sodomy charge is a felony and Singson could face up to five years in prison if convicted.

The prosecutor in the case, Harvey L. Bryant, did not respond to calls seeking comment, but in a press statement he celebrated the ruling.

“This ruling means that offensive, illegal conduct in public places will continue to be prosecuted in Virginia Beach, and I hope everywhere,” Bryant said.

Another Virginia prosecutor, Marsha L. Garst, held a press conference on July 23, roughly three weeks after the Lawrence decision, to announce the indictments of 26 men on a range of charges including the state’s sodomy law. The arrests resulted from a months-long undercover operation in a porn shop where the men allegedly had sex.

“We have a few prosecutors who feel it is appropriate to find a way to work their way around Lawrence as much as possible,” said Dyana Mason, executive director of Equality Virginia, a queer rights group.

In published reports, Garst, who did not respond to calls seeking comment, argued that conduct in public was not covered by the Lawrence decision.

“It appears there are going to be some test cases to figure out the scope of the law in Virginia,” Mason said. “The current law is still being used to some degree to go after gay men. Most straight couples, their charges seem to knocked down to misdemeanors immediately.”

The prosecutions match Virginia’s political climate, which has been grudging, if not outright hostile, about gay and lesbian issues. Both houses of the state legislature are dominated by right wing Republicans and they are pushing a conservative agenda. Judges are elected by the legislature in Virginia and, earlier this year, a state senate committee refused to reappoint Circuit Court Judge Verbena Askew charging she had lied about alleged sexual advances she made towards a female employee.

Also earlier this year, the Board of Visitors at Virginia Tech, a state school, provoked outrage when it removed bans on discrimination based on sexual orientation from the university’s employment policy that had been in place since 1995. The board reversed its decision in May. In 2002, the board denied tenure to Shelli Fowler, out lesbian professor. It reversed that decision on November 4 this year.

Until July, a Virginia public housing agency denied home loans to co-borrowers who were unrelated by marriage or blood. Virginia was the only state in the country that had that policy.

There are, however, signs of political progress in Virginia.

On November 4, Virginia elected it first openly gay state legislator to its General Assembly. In the past three years, another two openly gay politicians have been elected to local government bodies.

“I hope we’ve turned a corner,” Mason said. “I think there are some things to look forward to and some opportunities.”

Mason said that her group was concerned that the state legislature might try to re-write the state’s sodomy law.

“We are worried that there may be some attempts to re-criminalize public sex as a felony or re-criminalize certain sex acts,” she said. “It seems to be clear that they are trying to look for a way to insure that Virginia’s gay and lesbian and gay community will continue to be persecuted.”

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