Louisiana Police Arresting Gay Men Under Unconstitutional Sodomy Law

In various posts this blog has noted GOP gubernatorial candidate for Governor of Virginia Ken Cuccinelli's obsession with gays and re-instituting Virginia's sodomy statue which was invalidated by the United States Supreme Court's ruling in Lawrence v. Texas and more recently by a ruling of the U. S. Court of Appeals for the Fourth Circuit.  Why some ask is this so important to Cuccinelli?  A situation out of Louisiana demonstrates why maintaining sodomy statutes is so important to the Christofascists and zealots like Cuccinelli.  It allows them to entrap gays and hit them with felony charges rather that the mere misdemeanor charges that would apply to prostitution and/or soliciting for sex.  The Virginia statute governing prostitution and solicitation reads as follows:

§ 18.2-346. Prostitution; commercial sexual conduct; commercial exploitation of a minor; penalties.

A. Any person who, for money or its equivalent, (i) commits adultery, fornication, or any act in violation of § 18.2-361 or (ii) offers to commit adultery, fornication, or any act in violation of § 18.2-361 and thereafter does any substantial act in furtherance thereof is guilty of prostitution, which is punishable as a Class 1 misdemeanor.

B. Any person who offers money or its equivalent to another for the purpose of engaging in sexual acts as enumerated in subsection A and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution, which is punishable as a Class 1 misdemeanor. However, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony. 

Virginia's sodomy statute which applies to married heterosexual couples too as written reads as follows:

§ 18.2-361. Crimes against nature; penalty. 

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony . . .

Note that ONLY when a minor is involved does the charge increase to felony status.  However, under the sodomy statute (which is still on the books in Virginia thanks to the efforts of Cuccinelli and Del. Bob Marshall), any solicitation is a felony even when a minor is not involved.   As a result, the sodomy statute is the preferred vehicle to harass and prosecute gays.  Cuccinelli claims the sodomy statute is needed to protect minors, but in fact the current prostitution statute already covers minors and increases the offense to the felony level.

But back to the situation in Louisiana.  As John Becker at The Bilerico Project report, Louisiana is doing precisely what Cuccinelli wants to do: target gays under an unconstitutional law in order to charge them with more serious offenses with much more severe punishments:

Sheriff's deputies in the Louisiana parish (county) of East Baton Rouge are entrapping, arresting, and booking gay men in undercover sex stings, according to an investigation by the Baton Rouge Advocate.

It's not about prostitution, as no money ever changes hands and no sex-for-money deals are worked out prior to arrest. It's also not about public sex (although such a sting would still be problematic, for reasons I've discussed previously). No, these men are being targeted, solicited, and then arrested simply for consenting to sexual activity at a private residence.

Since 2011, the newspaper found that least a dozen men have been arrested in East Baton Rouge Parish in similar sting operations, the most recent taking place just ten days ago. And how does the office of Sid J. Gautreaux III, Sheriff of East Baton Rouge (right), justify them? Why, by pointing to Louisiana's anti-sodomy law, of course! Casey Rayborn Hicks, a spokeswoman for the Sheriff's Office, told the Advocate:

"[The anti-sodomy law] is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature. Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted."

When Lawrence was handed down in 2003, Louisiana's then-attorney general issued a statement declaring the state's anti-sodomy statute unenforceable. The unconstitutional ban remains on the books because legislators have so far refused to repeal it, but the state legislature's obstinance doesn't miraculously grant local officials the power to enforce voided laws.

In each of the cases examined by the Advocate, District Attorney Hillar Moore III has refused to press charges due to the absence of any actual criminal activity. So this clearly has nothing to do with enforcing the law or preserving the peace, and everything to do with singling out and humiliating gay men.

Sheriff Gautreaux's shameful stunt has disturbing echoes of an earlier time in America when gay sex was illegal and LGBT establishments and cruising grounds were frequently raided by police in order to shame and intimidate the local LGBT community, satisfy the public's lust for all things salaciously taboo, and fulfill society's seemingly endless desire to claim moral superiority.