- The Washington Times - Tuesday, November 8, 2005

RICHMOND (AP) — The Virginia Court of Appeals yesterday upheld the conviction of a Virginia Beach man who police say solicited oral sex from an undercover officer in a department store restroom.

The court rejected defense arguments that a U.S. Supreme Court ruling striking down anti-sodomy and similar state laws nullified a Virginia statute outlawing oral sex.

“We’re still considering whether or not to take an appeal,” said Greg Nivens, an Atlanta-based lawyer with Lambda Legal Defense and Education Fund, a homosexual rights group representing Joel Singson.

In a 20-page opinion, Judge Robert J. Humphreys dismissed suggestions that Virginia’s sodomy law violated Singson’s constitutional rights and that a six-month sentence imposed upon him last year constituted cruel and unusual punishment.

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.

Virginia Code 18.2-361 says any person who “carnally knows” a male or female’s sexual organs via mouth has committed a felony.

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.

But Judge Humphreys said the law wasn’t targeting speech.

“Code 18.2-361 itself does not criminalize speech or expressive conduct. Rather, it only prohibits sexual conduct,” he wrote. “Solicitation of a sexual act is not communicative speech, but rather, non-expressive conduct.”

The crux of Singson’s argument, however, rested on the question of public and private sexual acts and whether the U.S. Supreme Court’s recent decision in Lawrence v. Texas made Virginia laws surrounding those acts invalid.

That 2003 ruling banished state statutes criminalizing homosexual sex as a violation of an individual’s constitutional right to sexual privacy.

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