Virginia needs a new law that complies with a recent U.S. Supreme Court ruling that struck down anti-sodomy statues, but the state should keep its existing sodomy ban as a nonworking, unconstitutional relic, the state Crime Commission said yesterday.
Removing the state’s more than two-century-old law could doom pending court cases involving people charged or convicted under current Virginia law, members of the commission said.
“The reason we’re going to do that is right now there are several cases working through the court systems in Virginia,” said Kimberly Hamilton, executive director of the Virginia Crime Commission. “The [Attorney Generals] Office is going to deal with that on an appellate level.”
Virginia law prohibits sodomy between consenting adults, even married couples, although it has not been used against married heterosexuals in years. Violators face up to five years in prison and a $2,500 fine.
In June, the Supreme Court ruled that a ban on sodomy between consenting adults in private places violates privacy rights. The high court also ruled that laws against public sex remain valid.
Yesterday the commission asked a subcommittee to further study options for a new law that would bring Virginia into compliance with the Supreme Court ruling. A new law would forbid consenting adults from engaging in sodomy in public places, and keep sex acts with juveniles and prostitutes illegal.
If approved by the General Assembly, the new law would go into effect July 1. The commission will have its recommendations for the new law prepared by its Jan. 13 meeting.
The issue has sparked a debate. Some Democrats said they agree with the high court’s ruling, while some Republicans argued that the acts should be kept illegal.
Delegate Brian J. Moran, Alexandria Democrat, said the issue has been a contentious one for the commission.
“I’ve received more contact from citizens in the commonwealth on this issue than on any other issue,” said Mr. Moran. “They think it would appear to be a retreat from family values. I don’t share that opinion. … I think the Supreme Court got it right. Consenting adults in private should be left alone.”
Delegate David B. Albo, Fairfax Republican who is commission chairman, said this was a tough issue to tackle.
“A lot of people don’t agree that certain sex acts should be legal in Virginia,” Mr. Albo said. “Some people don’t want to capitulate to a decision by the Supreme Court they consider to be completely wrong.”
Mr. Albo cited incidents in which homosexuals engaged in public sex acts in county and state parks. Ongoing police stings over the last few years have resulted in more than 50 arrests.
If Virginia’s existing law is found unconstitutional, acts such as homosexual sex in public could become legal, some lawmakers said. Creating a more specific law would protect against this, Mr. Albo said.
House Majority Leader H. Morgan Griffith, Salem Republican, said a new law would cover gaps in the existing statute, which also bans bestiality and incest. Mr. Griffith, however, cautioned the commission against new laws that punish sodomy or homosexual contact more severely than intercourse between men and women.
“It needs to be consistent on public sex, whether it’s normal heterosexual sex or sodomy. It should be the same across the board,” Mr. Griffith said.
The Attorney General’s Office could not say how many cases involving the sodomy law are pending in state courts.
Some lawmakers not on the commission were unhappy about leaving the existing law on the books.
“It’s just silly,” said Delegate-elect Adam Ebbin, Arlington Democrat and the state’s first openly homosexual legislator. “Here we are in the 21st century, and Virginia is not quite ready to make the commitment to get into the 20th century.”
“Most Virginians are probably unaware the state code regulates intimate sexual acts in private between even a husband and wife. It’s ridiculous to have government involved in people’s conduct in their bedrooms,” he said.
The new law will be crafted with help from Virginia Attorney General Jerry W. Kilgore, a Republican who has said he disagrees with the Supreme Court ruling.
“The people of Virginia have a right to say that they do not want these acts performed in public and that such acts, if performed against someone’s will, are criminal,” said Mr. Kilgore in a written statement.
“As one who believes that the courts are to interpret and not create law, I disagree with the ruling and am always disappointed when a court undermines Virginia’s right to pass legislation that reflects the views and values of our citizens.”
This article is based in part on wire service reports.