Making Sexuality a Crime: Anti-Sodomy Laws in the United States

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The 4th US Circuit of Appeals struck down an anti-sodomy law on Tuesday in a Colonial Heights case in Virginia.

The ruling reversed the decision of a lower court which upheld the 2005 conviction of William Scott MacDonald, then 47, for the criminal solicitation of a 17-year-old-old girl to commit sodomy.

In 2003, the United States Supreme Court ruled that anti-sodomy laws were unconstitutional. The majority opinion of the 4th Circuit held that the Virginia law was therefore invalid, and could not be used as the predicate felony of which to charge MacDonald.

Rebecca Glenberg, legal director for the American Civil Liberties Union of Virginia, agreed with the court’s decision. “Virginia can and should punish adults who have sexual relations with minors, but the state cannot use an unconstitutional law to do so,” she said.

“Instead, the legislature should enact narrowly drawn statutes that do not apply to private conduct between consenting adults and define equitably and clearly what sexual conduct with minors is unlawful.”

The anti-sodomy law, also called “Crime Against Nature,” criminalize anal and oral sexual intercourse between persons.

Dale Carpenter, author and Professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, told Reason TV that “Sodomy law in the United States goes back to the founding and before the founding to the colonies, but they had always covered both opposite sex and same sex activity.”

He continued, “In the 1970s some states like Texas began narrowing their laws to focus solely on intimacy between two people of the same sex and making only that criminal, but allowing others their own right to privacy and sexual autonomy.”

Equality Matters, an LGBT equality organization, reported that 10 years after the Supreme Court decision “many states have continued to enforce laws prohibiting private, consensual sex between same-sex adults.”

According to the organization, Nelson Sloan and Ryan Flynn of North Carolina were arrested under a Crime Against Nature statue for engaging in private, consensual, homosexual sex. 

And in 2009, two gay men were kicked out of a Texas restaurant for kissing in public because of the state law which prohibits “deviate sexual intercourse with another individual of the same sex.”

These incidents and the Colonial Heights case show that despite being ruled unconstitutional, anti-sodomy and discriminatory LGBT laws are still enforced in certain parts of the United States and can result in what Equality Matters calls “humiliating, costly and discriminatory legal disputes.”

Carpenter pointed out that both homosexuals and heterosexuals should be concerned about anti-sodomy laws.

“There are some things that the state cannot do to direct the moral content of your life,” he said. “And controlling your sexuality is one of those things.”

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