A Stitch in Haste

An interesting case in Virginia raises the question of just how far the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), goes in forbidding criminalizing sex for the sake of criminalizing sex.

[Joel] Singson, 38, was convicted in 2003 after he approached a male officer in a public restroom and asked if he could perform oral sex on the man in a handicapped stall. A court sentenced him to three years, with all but six months suspended.
…
Attorneys for Singson contended that Virginia’s sodomy law was unconstitutional because it, combined with related codes, restricted everything from private sexual acts to discussions of such acts. For the latter reason, they argued, the law also violated protected speech.

Stigson’s conviction was upheld by the Virginia Court of Appeals.

Most people know that Lawrence specifically addressed laws criminalizing homosexual sodomy between consenting adults in a private non-prostitution setting. (“Sodomy” in this context is expansively defined, as it is in many states, to include oral sex.)

Okay, fine, but what about homosexual sodomy in public? Lawrence putatively says nothing about that. Nor should it — the question of banning sex acts in public is entirely different from the question of punishing gay sex differently than straight sex (or with the question of punishing it at all when it is private).

So these two competing principles — (1) Lawrence says you can’t treat private gay sex differently than private straight sex, and (2) Lawrence doesn’t say you can’t punish public sex — are now at loggerheads thanks to a terribly written Virginia law that reads as follows:

any person who “carnally knows” a male or female’s sexual organs via mouth has committed a felony

On the one hand, such a law would seem to be unconstitutional under Lawrence. But on the other hand, if the law is only applied to such acts committed in public, then Lawrence is inapplicable.

Hmmm…

The real lesson here is that legislators often do a very bad job of writing laws. So explain to me again why they should be afforded “great deference” by judges?

I don’t think you need Lawrence at all to argue that this law is invalid. It’s unconstitutionally vague anyway, even without Lawrence as a booster shot. A law that facially prohibits all instances of a sex act but is purportedly only enforced against public sex acts is still constitutionally suspect. If public sex is what you’re trying to prevent, then draft your laws accordingly.

In any case, there’s nothing particularly anti-gay about reiterating that Lawrence only covers private sexual conduct. Most gays are not seeking a “constitutional right” to have anonymous sex in a public restroom.

Some other hasty stitches:

–Remember that no sex actually took place. The defendant faced a three-year jail sentence merely for soliciting sex.

–Don’t Virginia police have better things to do than skulk around in public restrooms waiting to be propositioned for sex?

The heroes at Lambda Legal have been representing the defendant and are now deciding whether to appeal.

The case is Virginia v. Stigson, No. 0646-04-1 (Va. November 8, 2005).