A few weeks ago, RH Reality Check wrote about Virginia gubernatorial candidate Ken Cuccinelli’s bid to bring back the state’s anti-sodomy law, despite the fact that such laws were struck down as unconstitutional by the U.S. Supreme Court in the 2003 case Lawrence v. Texas. In Virginia, like in 12 other states, the anti-sodomy law remains on the books even though the Court’s decision means that it basically lies dormant. Cuccinelli is arguing that it should be made active again because he feels no other law in his state can protect young people from sexual predators. The law makes oral and anal sex a crime even between consenting adults, but he has essentially asked voters to trust that he just won’t enforce that part.
News out of Louisiana, however, suggests that voters should be wary of Cuccinelli’s promise and the law itself. The Advocate reported this weekend that at least 12 men in that state have been arrested since 2011 on anti-sodomy charges resulting from a sheriff’s sting operation.
That’s right, not only has the sheriff of East Baton Rouge Parish been arresting men for a crime that is no longer enforceable in the state—he’s spent time and money trying to catch them doing it.
On July 18, a 65-year-old man unknowingly began a conversation with an undercover police officer who was staking out Manchac Park. According to court documents, the police officer (who had denied being a cop) asked the man whether he had any condoms and if he wanted to come back to his place for “some drinks and fun.” The older man followed the officer back to a nearby apartment complex where he was promptly arrested, despite having broken no law—there was no suggestion that money would change hands and the men did not make plans to have sex in a public place.
The arrest was based on Louisiana’s “crimes against nature” law, which has been on the books since 1805 and, as written, prohibits “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.” This aspect of the law, however, is unconstitutional based on the Lawrence decision. Moreover, when the Lawrence decision came down, then-state Attorney General Richard Ieyoub issued a statement saying the state’s anti-sodomy law would be unenforceable except for provisions banning sodomy for compensation and sex with animals.
Apparently, the sheriff’s department never got that memo, as the July arrest was one of at least a dozen made by the Special Community Anti-Crime Team since 2011; the team also investigates prostitution and child predators. The district attorney’s office has declined to prosecute any of these cases for the simple reason that no crime had been committed in any of them. (A similar sting in 2007, at a different park, resulted in four arrests under this law.) Initially, the sheriff’s office denied any wrongdoing. A spokeswoman for the office told the Advocate, “This 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.”
Thomas D’Amico, an attorney in Baton Rouge who represented one of the men arrested in the sting operation, pointed out that even though his client was never prosecuted and never broke any laws, he racked up an estimated $7,500 in fees. D’Amico said, “One of two things [is] going on here. The sheriff’s office is either harassing people for their lifestyle. Or they don’t know the law. Neither is good for Baton Rouge, I can tell you.”
Metro Councilman John Delgado was even angrier. He asked the Advocate rhetorically, “Does he know that slavery is no longer around? Does he know that we have cars and no longer horse and buggies?”
Perhaps as a result of this kind of publicity, the sheriff’s office has dramatically changed its tune since the story originally broke over the weekend. TIME magazine reported on Wednesday that in a Facebook post, the office apologized “to anyone that was unintentionally harmed or offended by the actions of our investigations” and said it regretted “that the way these investigations were handled made it appear that we were targeting the gay community.” The office’s Facebook statement went on to say that while these laws “have not been removed from the Louisiana law code, they have been deemed unenforceable and unconstitutional. The Sheriff’s Office will not use these unconstitutional sections of the law in future cases.”
Kenneth Upton, senior staff attorney at Lambda Legal, sees an upside to the publicity the Louisiana sting operation received. He told TIME, “The country is learning that leaving something on the books isn’t harmless. Just because laws are not enforced, and are not prosecuted, doesn’t mean that people can’t be harassed.”
Unfortunately, similar laws also remain on the books in Alabama, Florida, Idaho, Kansas, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, Virginia, Texas, and Utah, and there does not seem to be a lot of support for repealing them. “There’s unwillingness among conservatives to appear that they are for gay sex,” Carlos Maza, a researcher at Equality Matters, told TIME. He added that many progressives who are pleased with the current level of support for same-sex relationships also don’t think this is the best time to remind people that, until recently, homosexual sex was illegal. Others, however, feel that these laws should be gone for good.
And then, of course, there’s Ken Cuccinelli, who wants to dust off Virginia’s anti-sodomy law and bring it out of the closet, so to speak.