numediaman
Apr 1, 2004, 10:27 AM
Pretty ironic for a state whose motto is "Virginia is for lovers":
State's law on sex act challenged
A woman charged under the statute for crimes against nature says sex laws are unconstitutional.
BY MONIQUE ANGLE
March 30 2004
NEWPORT NEWS - A Newport News woman charged with a felony for receiving oral sex in a car is challenging a state law that prohibits certain types of sex between consenting adults.
A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature.
The woman's attorney is arguing that the charge is unconstitutional because the U.S. Supreme Court ruled in a Texas case that states can't pass laws that restrict the private sex lives of consenting adults.
Virginia's statute on crimes against nature says people can't have oral or anal sex, whether homosexual or heterosexual. But the law doesn't specify whether the sex is illegal in public or in private.
Advocates who have fought against the state's anti-sodomy laws say this case is unusual because the laws are seldom applied to heterosexuals. In Virginia Beach, Lambda Legal is representing a gay man accused of soliciting sex in a public restroom.
In the woman's case, Sgt. Randy Franklin came upon a parked car in a parking lot outside the Newport Trace apartments on Constance Drive near the Newport Square shopping center. He thought the car - with its taillights on - looked suspicious, so he walked up to the car and used his flashlight to find out what was going on, he said in court.
The Daily Press is withholding the name of the man and the woman to protect their privacy.
On Monday - under an agreement with prosecutors - the man pleaded guilty to the lesser charge of indecent exposure. The woman was offered the same plea, said Newport News Assistant Commonwealth's Attorney Jill Schmidtke. If convicted of the felony charge, the woman could face up to five years in jail.
But her attorney, David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can't regulate the sexual behavior of consenting adults in private.
As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.
Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee's motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial.
Advocates against the state's anti-sodomy laws were surprised by the charges.
"That is very, very rare," said Kent Willis, executive director of the ACLU of Virginia. "One reason is that there are other laws against public acts of sex. The difference is that most acts are a misdemeanor."
Schmidtke said it is up to the officer at the scene to ultimately determine whether the crime is a felony or a misdemeanor. In this case, the felony for crimes against nature would involve oral or anal sex. A misdemeanor such as indecent exposure involves an obscene display of private parts in public.
Schmidtke also said that the constitutionality of the statute "is a matter for the legislature."
http://www.dailypress.com/news/local/dp-84336sy0mar30,0,6107492,print.story?coll=d
The official state marketing logo:
State's law on sex act challenged
A woman charged under the statute for crimes against nature says sex laws are unconstitutional.
BY MONIQUE ANGLE
March 30 2004
NEWPORT NEWS - A Newport News woman charged with a felony for receiving oral sex in a car is challenging a state law that prohibits certain types of sex between consenting adults.
A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature.
The woman's attorney is arguing that the charge is unconstitutional because the U.S. Supreme Court ruled in a Texas case that states can't pass laws that restrict the private sex lives of consenting adults.
Virginia's statute on crimes against nature says people can't have oral or anal sex, whether homosexual or heterosexual. But the law doesn't specify whether the sex is illegal in public or in private.
Advocates who have fought against the state's anti-sodomy laws say this case is unusual because the laws are seldom applied to heterosexuals. In Virginia Beach, Lambda Legal is representing a gay man accused of soliciting sex in a public restroom.
In the woman's case, Sgt. Randy Franklin came upon a parked car in a parking lot outside the Newport Trace apartments on Constance Drive near the Newport Square shopping center. He thought the car - with its taillights on - looked suspicious, so he walked up to the car and used his flashlight to find out what was going on, he said in court.
The Daily Press is withholding the name of the man and the woman to protect their privacy.
On Monday - under an agreement with prosecutors - the man pleaded guilty to the lesser charge of indecent exposure. The woman was offered the same plea, said Newport News Assistant Commonwealth's Attorney Jill Schmidtke. If convicted of the felony charge, the woman could face up to five years in jail.
But her attorney, David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can't regulate the sexual behavior of consenting adults in private.
As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.
Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee's motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial.
Advocates against the state's anti-sodomy laws were surprised by the charges.
"That is very, very rare," said Kent Willis, executive director of the ACLU of Virginia. "One reason is that there are other laws against public acts of sex. The difference is that most acts are a misdemeanor."
Schmidtke said it is up to the officer at the scene to ultimately determine whether the crime is a felony or a misdemeanor. In this case, the felony for crimes against nature would involve oral or anal sex. A misdemeanor such as indecent exposure involves an obscene display of private parts in public.
Schmidtke also said that the constitutionality of the statute "is a matter for the legislature."
http://www.dailypress.com/news/local/dp-84336sy0mar30,0,6107492,print.story?coll=d
The official state marketing logo:
