Rex Bowman
Staff Writer

Attorney taking on sodomy law

ROANOKE -- Former Watergate attorney Samuel Garrison III says it is time to sit down and talk about sodomy.

To that end, Garrison is leading an assault on Virginia's anti-sodomy law, a 207-year-old relic from an era in which lawmakers labeled perverse those who would sexually gratify themselves in ways that did not help mankind to "go forth and multiply."

Police vice squads around the state-in Richmond, Charlottesville and Roanoke, for instance-have lately resuscitated the law to clamp down on homosexual activity in public parks and restrooms.

But the law doesn't apply just to homosexuals. In essence -- and brace yourself for frank language here -- the law proscribes the sexual behavior of all Virginians and can make the most intimate of physical acts a felony. Whether homosexual or heterosexual, man or woman, married or single -- no one in Virginia can legally engage in oral sex or anal sex.

The law, Garrison said, is crazy.

"You've got all these adult Virginians committing sodomy joyously and frequently, in their homes or in hotels," said Garrison. "But the fact is, it's illegal in Virginia. The statute on its face is unconstitutional." Garrison, once the chief Republican counsel for the House Judiciary Committee considering President Richard Nixon's impeachment, is now defending nine men accused of soliciting oral sex from an undercover police officer at Roanoke's Wasena Park. One of the men is scheduled for trial in July.

The other eight pleaded guilty last week, but only on condition that they be allowed to appeal by challenging the constitutionality of the state's ban on consensual sodomy.

Sodomy is a felony punishable by a fine of up to $2,500 and up to five years in prison.

Garrison, himself a homosexual, said it is the anti-sodomy law that will be put on trial in the Virginia appeals court.

"It would be quite an honor to be the champion" defender of sodomy, Garrison said. "What we're talking about is being the champion of 4 million adult Virginians, being the champion of keeping the government from intruding into their bedrooms."

Alice Ekirch sees it differently. Ekirch, the assistant Roanoke commonwealth's attorney who prosecuted Garrison's clients, said the sodomy law is fair and necessary to halt sex acts in public places, such as city parks where children play.

"We're not talking about going into the bedrooms of consenting adults," she said. "We're talking about trying to stop people from having sex in a public park. It's not unconstitutional on its face, and that's what we'll be arguing on appeal."

In addition to the nine men Garrison represents, four others have pleaded guilty to trying to solicit sodomy in Roanoke, and five more charged with the felony plan to stand trial.

Altogether, seven lawyers represent 18 men. Garrison, however, has taken on the largest share of the defense work, which is likely to yield headlines, publicity and animated workplace chit-chat when his appeals climb their way through the state courts.

He's no stranger to such limelight. Formerly Roanoke's prosecutor, the now 57-year-old Garrison moved to Washington to join the staff of then-Vice President Spiro T. Agnew at the age of 30 and from there became chief GOP counsel on the House committee investigating Watergate in 1974.

Back in Roanoke in 1980, Garrison's soaring legal career nose-dived. He was convicted of embezzling nearly $46,000, a crime for which he spent four months in prison and lost his law license. Three years later, his partner in a failed Roanoke discotheque tried to hire a hit man to murder him for $500,000 in business life insurance. The partner, an oral surgeon, received a five-year suspended sentence.

The Virginia Supreme Court restored Garrison's law license in 1993. Now, Garrison could end up before the state high court again, this time arguing on behalf of men whose lives have been shattered over an act that, Garrison says, most Virginians feel fine about. To make that point, Garrison has already obtained the sworn testimony of more than a dozen psychologists, sexologists and ministers, including a Southern Baptist, who spoke to the joys and benefits of oral sex.

"The public attitude is not stuck in the 17th century," he said. Garrison is not the first to attempt to undo the law. The General Assembly has considered several bills in recent years that sought to rewrite the anti-sodomy statute so that the only "crimes against nature" would be sex acts involving minors, close relatives or animals.

But the bills-House Bill 2718 in 1997, Senate Bill 583 in 1998, House Bill 1504 this year-all died quiet deaths. While lawmakers publicly voiced concerns that the state's anti-sodomy law is an old-fashioned attempt to regulate private behavior, few were willing to go on record as a supporter of a particular sex act.

In the words of Del. Clifton "Chip" Woodrum, a Roanoke Democrat: "People wanted to stay out of the way of the whole thing." Kent Willis, director of the Virginia American Civil Liberties Union, said legislators did not want to appear as if they were supporting the civil rights of gays and lesbians.

"There is no greater hypocrisy," Willis said. "The vast majority will talk about government intrusion, then they're afraid to assist a gay-lesbian rights vote."

Given legislators' squeamishness, Willis said, the courts might be the best place to change the law.

Indeed, in other states opponents of sodomy laws have had some success in the courts. As recently as 40 years ago there were 51 sodomy laws in the United States-one in every state plus the District of Columbia. Today, 18 such laws remain, including the one in Virginia. Twenty-six of the original 51 statutes were repealed by state legislatures and the D.C. government. Seven were struck down by state courts.

Proponents of Virginia's sodomy law, however, can take heart in this: The U.S. Supreme Court in 1986 ruled that Georgia's sodomy law, nearly identical to Virginia's, passed constitutional muster. In a 5-4 ruling in the case of Bowers v. Hardwick, the high court concluded that there is no inherent right to privacy in the language of the Constitution, and therefore states may enact sexual prohibitions.

Though Justice Lewis F. Powell Jr. later lamented that his vote with the majority was "probably a mistake," the ruling is still the Supreme Court's final word on the subject of sodomy laws. And yet it has been in the years since the Supreme Court ruling that state courts have begun to dismantle such laws. While Powell and his colleagues found no protection for sodomites in the federal Constitution, state courts have construed their own state constitutions to afford such protections under an implicit right of privacy.

The Georgia Supreme Court last year threw out the very sodomy law that the U.S. Supreme Court had upheld. In other states, where the laws were aimed at homosexuals-Montana, Kentucky and Tennessee, for instance-high courts have also ruled them to be unconstitutional invasions of privacy.

Ekirch, though, reiterated that, in Roanoke at least, police officers have no interest in invading anyone's privacy: They only want to stop individuals from engaging in consensual sex in public places.

At a court hearing in January, Roanoke's then-chief of vice squad operations, R.E. Carlisle, said the same thing. If an officer heard one man solicit oral sex from another and the sex was to occur in a public place, the officer would make an arrest, Carlisle testified. If, on the other hand, the two men talked about going home to have sex, Carlisle said, "it would be appropriate for the officers to confront the two people involved in this conversation, inform them that he had overheard the discussion of committing an illegal act, and inform them of the law they are about to violate, and warn them against it."

Garrison said Carlisle's testimony is proof that the state sodomy law threatens every adult Virginian. "The commonwealth's own witness made it clear that anybody is truly vulnerable to prosecution even if they do it in their home," Garrison said, "because what's the point of issuing a warning if there's no threat of prosecution."

In the cases of the Roanoke defendants who are pleading not guilty, Ekirch is demanding jury trials. Not, she said, because she wants to humiliate the defendants, but because "it's an issue that our community ought to decide." In neighboring Botetourt County two years ago, there was a sodomy case that Garrison said illustrates two points: one, private heterosexual sodomy is just as subject to prosecution as homosexual sodomy; and two, the public thinks the sodomy law is outdated.

In the Botetourt case, a man named Liniel Gregory III was accused of rape and forcible sodomy by a woman who worked at an exotic dance club. Trial testimony disclosed that the two had had sex in Gregory's bedroom, and the jury concluded it was not forcible, but consensual. The judge instructed the jury to find Gregory guilty of consensual sodomy if the evidence warranted. According to one juror, who wrote an open "to whom it may concern" letter about the deliberations, the jury was unhappy with having to enforce the sodomy law.

"Many of us resented the archaic law and much discussion was held on how it could impact each of us," juror Deborah Gilbert wrote. "Nowhere do I remember seeing in print that by doing this, it would make him a felon. ... We felt that his rights were being violated."

Still, after reading the judge's instructions and recalling that Gregory had freely admitted having oral sex with the woman, the jury found him guilty of sodomy. Jurors walked out of the deliberating room and announced their verdict and their punishment: a fine of $25.

The point of the small fine, Gilbert wrote, was "to send a message that we disagreed with the law and found it ludicrous and archaic."