Posted on 04/15/2003 6:05:49 AM PDT by berserker
A repeal effort will be discussed at a town hall meeting tonight in Raleigh
Frederick J. Smith learned that he was breaking the law eight years ago during a court battle over the custody of his two sons. His ex-wife's lawyer got Smith, 44, and his boyfriend on the witness stand to admit to having oral sex and demanded that both be arrested on the spot for violating North Carolina's "crime against nature" statute. The bailiffs laughed, recalled Smith, a plant worker from Fletcher.
"They all thought it was a big joke that this guy made such a big deal about something that in today's society is so arbitrary," he said. "It's like an old blue law: Only enforce it when you feel it's of advantage to you."
In Smith's case, the law gave his ex-wife the advantage. The court awarded her custody of his sons, ages 7 and 9, based on his sex life. The state Supreme Court upheld the decision, though on different grounds.
Although the statute covers everyone -- same- and opposite-sex partners, singles and married couples -- its opponents say the way it is enforced creates an environment of inequality for gays and lesbians. They say the possibility of being charged under the statute influences child custody, employment and insurance decisions.
Last month, a similar anti-sodomy statute came before the U.S. Supreme Court. If the court overturns the Texas law, which covers same-sex partners only, some legal experts say North Carolina's law could change, too. North Carolina's law would be open to substantial challenge based on equal protection or privacy, said Gene Nichol, dean of UNC-Chapel Hill's law school.
State lawmakers submitted a bill this month that would effectively abolish the statute and add soliciting anal and oral sex to prostitution statutes. Similar bills died during the last three sessions. The bill and the Texas case will be discussed at a town hall meeting tonight in Raleigh sponsored by Equality NC, an advocacy group.
The anti-sodomy statute carried a penalty of death when passed in 1837. That was later reduced to 60 years in prison, then 10, then two. Twelve other states have similar laws, four of which ban oral sex between same-sex partners only.
Because the statute is so broad, police can use it to make prostitution arrests, and prosecutors use it to negotiate pleas in sensitive sex-offender cases. It is a lesser felony than many other sexual offenses, and attempting or soliciting it is a misdemeanor.
Wake Assistant District Attorney Cindy Kenney said the law allows prosecutors to avoid bringing more serious charges against juvenile defendants, who receive treatment instead of jail time. It also helps elicit pleas in cases where victims of sexual abuse are not covered by other laws -- including the elderly or mentally ill, she said.
But Nichol said the statute should not be stretched for difficult cases. "It is not advantageous to have a law on the books that makes half the state criminals and have the answer be, 'Well, that's OK; we won't really enforce it, we'll only enforce it every now and then against certain people,'" he said.
Court records show more charges under the statute filed in the state's major cities, including Charlotte, Raleigh and Greensboro, where police routinely organize prostitution stings. Last year, 1,327 people in the state were charged with attempting, soliciting or committing a crime against nature. Of those, 91 were in the Triangle -- 80 in Wake County -- compared with 134 in Guilford County and 415 in Mecklenburg.
Raleigh Police Capt. D.S. Overman said that prostitution sweeps are based on complaints, not selective enforcement. "Based on the statute as written, it doesn't have to be a same-sex situation, and often it's not," he said.
Charlotte-Mecklenburg Police attorney Mark Newbold said officers who catch men soliciting or having sex in public parks do not target them for being gay. "It's not kicking the door down because people are having consensual sex behind closed doors. ... It's not, 'Let's go bust some gay guys,'" he said. "The question really is how is it useful to the community. And if it's not, then ... maybe we should change the law that's on the books rather than complain about how it's enforced."
State Sen. Ellie Kinnaird, a Carrboro Democrat and main sponsor of the bill to abolish the crime against nature law, said she thinks her bill has a chance to pass this time, or at least get a hearing, for two reasons. "First, gays and lesbians have brought this issue to the public over the years, so the public is aware of it. It's not a hidden issue anymore. And second, they are willing to advocate."
Attorneys who have represented gay clients charged under the statute say being charged has become a penalty: Clients have lost family, jobs, even their homes. "The ripple effect on these people is just incredible, even if they're acquitted," said Bill Durham, a lawyer in Winston-Salem.
In a precedent-setting case upheld by the Court of Appeals, an Asheville man was denied a real estate license based on a past conviction of crime against nature. Others have been denied insurance. Family lawyers say the law is routinely used as leverage against gay parents in custody cases.
"They erroneously interpret the statute to say that if you're gay, you're an unfit parent. That's not true. It's not a crime to be gay," said Durham lawyer Sharon Thompson, who represented Smith on appeal. Thompson said gay clients have settled for less child support and visitation time. "The mere existence of the statute is almost a license to discriminate against gay people," she said. "That's why I think the statute has to be repealed before we can move forward in any other aspect of the law."
I guess that depends on who's court you are in... Man's court or God's court. Who's going to be your Advocate then?
2 posted on 3/6/02 7:30 AM Pacific by grammymoon:
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This law is bull.
Hey, I'm no prude, but why would anybody put up a sodomy statue, especially in North Carolina? Instead of bringing it down like those Saddam statues in Iraq, maybe they should just cover it with a blanket.
What? Oh, um, nevermind.
Why?
It's NOT a pleasant mental picture.
MKM
Just curious, have you seen this?
Will this be legal if the law is overturned?
Oddly enough, they are the only ones interested in doing it.
Pretty much. Oral sex is not considered "sex" in NC. Indecent exposure requires that certain parts be visible to the public which may not be provable or even true in many cases.
Oddly enough, you are incorrect. I have never seen homosexual sex in public, but I have seen hetrosexual sex in public on several occasions.
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