Louisiana Sodomy Sting: How Invalidated Sex Laws Still Lead to Arrests

A decade after being ruled unconstitutional, sodomy statutes on the books in at least a dozen states pose a risk of police harassment, if not prosecution

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Oops, our bad. But it was on the books! Such was the response, essentially, of the East Baton Rouge Sheriff’s Office, after The Advocate newspaper reported on Sunday that at least 12 men had been arrested since 2011 under a sodomy law invalidated by the Supreme Court a decade ago. Most of these men were arrested after being approached by a male undercover cop at a public park and agreeing to have sex at a private residence. No money changed hands.

In 2003, the landmark Lawrence v Texas Supreme Court case declared a Texas statute prohibiting oral or anal sex – a so-called “sodomy law” — unconstitutional. Louisiana’s then-attorney general announced that a similar law in his state was not enforceable. But today the statute is still in Louisiana’s criminal code and similar laws remain on the books in at least a dozen other states. And the Baton Rouge case shows that in some pockets of the U.S., gays still have reason to be wary of police.

“To our knowledge, the Sheriff’s office was never contacted or told that the law was not enforceable or prosecutable,” the East Baton Rouge Sheriff’s office said in a statement released on Facebook. The statement also said “the deputies in the cases were acting in good faith using a statute that was still on the books of the Louisiana criminal code.” This post has since been deleted: in a new statement, the Sheriff’s Office apologized “to anyone that was unintentionally harmed or offended by the actions of our investigations,” and regretted “that the way these investigations were handled made it appear that we were targeting the gay community.” The statement added that while sodomy 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.” Baton Rouge prosecutors did not press any charges.

(LIST: Top 10 Controversial Supreme Court Cases)

Thomas D’Amico, a Baton Rouge attorney, represented one of the men arrested in the sting operations.  “One of two things are going on here,” says D’Amico. “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.”

In addition to Louisiana, Idaho, Utah, Michigan, Virginia, North Carolina, South Carolina, Florida, Alabama, Mississippi, Kansas, Oklahoma and Texas have kept unenforceable sodomy laws. In Kansas, Oklahoma, and Texas, only sodomy among homosexuals is outlawed. (Sec 21.06 of the Texas Penal Code, for example, bans “homosexual conduct,” or “deviate sexual intercourse with another individual of the same sex.” Before the statue comes a disclaimer: “Section 21.06 was declared unconstitutional by Lawrence v. Texas”).

These laws seem to have no teeth, but critics argue they can still stigmatize homosexuality. “It opens gay people to potential harassment,” says Jim Harrington, director of the Texas Civil Rights Project. In 2008 for example, two men in Raleigh, North Carolina, were arrested under the state’s sodomy statute for engaging in consensual sex. “The law is still on the books,” the Raleigh police captain told the News & Observer newspaper. “What the D.A.’s office will do with it, I don’t know.” Charges were dropped, but the damage – unwanted media attention, a jail stay — was done. “I’ve never been so humiliated in my life,” one of the men told the News & Observer. “It’s just awful.”

(MORE: Will Sodomy Charges End Malaysia’s Opposition?)

Such arrests also put taxpayers at risk. What if one of the men arrested in the Baton Rouge case, for example, decided to sue the city? According Justin Harrison, an ACLU attorney in New Orleans, no plaintiffs have come forward thus far. “This is the type of situation where people often don’t want the increased exposure that comes along with a federal lawsuit,” Harrison says. D’Amico says the man represented in Baton Rouge wants to stay out of the spotlight. The case has cost him enough already: D’Amico estimates that between bond and lawyer’s fees, his client was out $7,500. That’s no small sum for doing nothing wrong.

In many of the states where sodomy laws still exist, the political climate simply isn’t suited for repeal. “There’s an unwillingness among conservatives to appear that they are for gay sex,” says Carlos Maza, a researcher at Equality Matters, an LGBT advocacy group. In Virginia, Republican attorney general Ken Cuccinelli, who is running for governor, has asked the Supreme Court to stay a lower court decision that declared Virginia’s sodomy law unconstitutional.

Even for progressives, says Maza, the conversation about sodomy is unwelcome. After all the strides on gay marriage, Don’t Ask Don’t Tell, and other issues, why remind people that homosexuality was once a crime in many places? Still, many gay advocates feel the conversation is worthwhile. “There’s some good news in the Louisiana case,” says Kenneth Upton, senior staff attorney at Lambda Legal, an LGBT rights organization. “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.”

MORE: Pride and Prejudice: An Interactive Timeline of the Fight for Gay Rights

45 comments
Rocky2
Rocky2

   USA - from Puritans to Impure-itans

     Is there a connection between beautiful New England and entire American cities turned into smoking rubble? There is.
     Take same-sex marriage. I would have guessed that a "sin" city (San Francisco? Las Vegas?) would have been the first to legalize it.
     Oddly it's been the place where America started that's wanted to be the first place to help bring about the end of America and its values! It's been a Nor'easter of Perversion (helping to fulfill the end time "days of Lot" predicted in Luke 17) that began in (you guessed it) Boston in 2004.
     New England has gone from the Mayflower Compact to the Gay Power Impact, from Providence to decadence, from Bible thumpers to God dumpers, from university to diversity to perversity, and from the land of the Great Awakening to God's Future Shakening that will make the Boston bombings look like Walden Pond ripples by comparison!
     The same Nor'easter has been spreading south and as far west as Washington State where, after swelling up with pride, Mt. Rainier may wish to celebrate shame-sex marriage by having a blast that Seaddlepated folks can share in lava-land!
     The same Luke 17 prediction is tied to the Book of Revelation which speaks of the cities that God will flatten because of same-sexism - including American cities - a scenario I'll have to accept since I can't create my own universe and decree rules for it.
     I've just been analyzing the world's terminal "religion" that has its "god," its accessories, its "rites," and even a flag. It's an obsession that the infected converts are willing to live for, fight for - and even die for!       
     Want more facts? Google "God to Same-Sexers: Hurry Up," "Universal GAYety is Coming," "FOR GAYS ONLY: Jesus predicted," " 'Jesus Never Mentioned Homosexuality' - When Gays Have Birthdays...," "Harvey Milk Stamped 'Out' Forever" and "The Background Obama Can't Cover Up."

godot18
godot18

It seems to me that there are legal solutions to this issue that could be passed in a blanket manner that would protect elected officials from looking as though they "agree with homosexuality" while also protecting people from police harassment. Simply pass laws on the state or federal level that state that as soon as a law is found unconstitutional it is automatically repealed without the necessity of a vote. Even better, pass a law that says all laws in general need to be renewed after some period of years- you would immediately lose thousands of laws on the books that are out of date and unenforced and also take away the power of the police and the state to charge people with archaic crimes as payback when the initial crimes they were charged with are un-winnable.

This is a huge issue not just for LGBT rights but civil rights in general. Here in New York people are still constantly harassed by police and often have their cameras confiscated when they take pictures of public buildings, because no one bothered to inform the NYPD that the law making it illegal to do so was unconstitutional and never passed. In this case, at least, people are suing and winning. But why should anyone be forced to give up time, effort, and money to bring suit when they should never have been arrested in the first place?

ewanlillicii
ewanlillicii

This is exactly why all laws except those that protect individual rights should come with time limits of 20 to 30 years. Laws are there because of bad behavior. If you agree that we are moving forward in progress as a nation then laws must therefore lessen in quantity and complexity over time. Make lawmakers think about the reasonable value of a law on the books for a while rather than inventing reasons to add more and more of them to gain some media coverage or pander to a vengeful constituency conditioned to substitute penalty for justice.

Disco_House
Disco_House

Surely this requires a lawsuit against the cities by the Obama administration?!


The constitution was drafted to protect minorities from the Tyranny of the majority, and it is the President's job to uphold the constitution.    

CletusAhmashti
CletusAhmashti

f*ucking in the ass is just wrong, plain and simple, whether your gay or straight

JamesDillon
JamesDillon

Religious fundamentalism is a cancer on the Southern soul.

alurlyrx
alurlyrx

OhMyGosh. In order to justify someone's job, they have to have a need, so they make a vice-squad position. It's so hypocritical to prosecute someone for doing something that is private between consenting adults. Geezus, the United States went to the moon but still holds onto medieval witch hunts similar to the Taliban in the mid-east.

RangerDanParsons
RangerDanParsons

Cut taxes, lay off cops enforcing laws that aren't law. These kooks being in charge of law enforcement are running witch hunts. Time to burn THEM at the stake.

weq2345q2454t3qgaegh
weq2345q2454t3qgaegh

so if they passed a law requiring them to kill everyone's 1st born son the cops would just go enforce it? where's their judgement? 

weq2345q2454t3qgaegh
weq2345q2454t3qgaegh

shouldn't they have the good sense to not go out of their way to enforce immoral laws?

DeweySayenoff
DeweySayenoff

" “To our knowledge, the Sheriff’s office was never contacted or told that the law was not enforceable or prosecutable,” the East Baton Rouge Sheriff’s office said in a statement released on Facebook." "

Correct me if I'm wrong, but aren't these the same people who say "Ignorance of the law is no excuse"?  Seems to me the police should be working to know what the laws are instead of waiting to be told.  You know, just like ordinary citizens have to be.

valentine.godoflove
valentine.godoflove

YOU ARE KIDDING ME......L A  NOTENFORCING SODOMY LAWS......BY GOD.......THERE MUST BE A LOT OF ILLEGAL SEX AND HORNY HOMOSEXUALS IN THAT STATE......LOL....

VALENTINE, COMEDIAN, LOL

SarahConfran
SarahConfran

1) the men should absolutely sue. Money is the only way the police force will get the message.

2) I hate when people claim incompetence as a defense. You being incompetent at your job is a reason for firing. The police chief and officers should be reprimended.

cdblnr
cdblnr

We need to make the world safe for sodomy.  I suggest the gay community travel to Arabia and start there.

anti-government
anti-government

Here's about the one billionth example of power-tripping cops taking advantage of people with unusual sexual desires. Sex should be left to consenting adults without any state involvement!

 Vice cops are about the least moral people alive and it is hard to see the difference between vice cops and the criminals they mingle with so much of the time.

There's nothing moral or immoral about where a man sticks his penis as long as he's doing it with a consenting adult.

Right wingers, supposedly so concerned about personal liberty, just don't seem to get that personal liberty includes sexual freedom.

mary.waterton
mary.waterton

We need more states like Louisiana with moral spine enough to give the SCOTUS the middle finger. At least half of this nation still recognizes homosexuality for that abomination that it is. If 150 MILLION people simply refuse to comply with the SCOTUS, they are going to have a hard time enforcing it because 150 MILLION is too many people to arrest.

sopranoliz
sopranoliz

So wait. If these "sodomy" laws only target gays explicitly in 3 states, WHY then are states only approaching gay men? Straight couples can have oral/anal sex, too. Where are all the articles on straight "sodomy stings?" Obviously some self-righteous homophobe sees those icky gay dudes as a really big "problem," going so far as to take police off the street and put them undercover just to arrest them dag-gum homos. It certainly "APPEARS" to me that they are targeting the gay community in all this.

Hermione
Hermione

Hey, law enforcement officials!

How about going after the real criminals for once?

Make me think that my tax dollars are being well-spent for a change.

IrishinToronto
IrishinToronto

“To our knowledge, the Sheriff’s office was never contacted or told that the law was not enforceable or prosecutable,”

Apparently police don't read newspapers.

gumshoo
gumshoo

Entrapment much?  We should boycott these ignorant states.

Piacevole
Piacevole

"The way these investigations were handled made it appear that we were targeting the gay community."

Imagine that.  

So. . . What WERE the police doing?

DeweySayenoff
DeweySayenoff

@godot18The police will say "Ignorance of the law is no excuse for breaking it."  It's a simple matter to sue the police for enforcing an unconstitutional law that's on the books in the first place because it is the JOB of the police to know if laws have been found unconstitutional in the first place.

The statement "“To our knowledge, the Sheriff’s office was never contacted or told that the law was not enforceable or prosecutable,” the East Baton Rouge Sheriff’s office said in a statement released on Facebook." is the same excuse - ignorance of the law - as someone who broke "unwittingly" it.

Being arrested or harassed based on an unconstitutional law is a violation of civil rights and a lawsuit waiting to happen.  Yes, it's a problem for the short term, but suing to have the law removed, to have the arresting officers fired (for kidnapping since they don't have the law to back them up in restraining a person for that), to have the prosecutor (if they're stupid enough to go that far) removed from office (unlawful prosecution) and all judges who signed off on it kicked out as well (not to mention punitive damages) will get those things removed from the books a hell of a lot faster than expecting lawmakers to do the right thing in red states where these laws remain.

Because if they had intended to do the right thing before, they would have already removed unconstitutional laws from the books.  Lawsuits are the only way to get them to obey the law of the land.

DeweySayenoff
DeweySayenoff

@ewanlillicii Did you actually say "make lawmakers think"?

Bwhahahahaha!!!!!!!

Wow, that's the best laugh I've had all week.  Thanks!  Big thumbs up!

DeweySayenoff
DeweySayenoff

@Disco_House The oath of office for all law enforcement is to "protect and defend" the constitution.  There is no oath of office for any official to "uphold" the Constitution, since they'd be violating their oath if an amendment was needed to be enacted or repealed.  Changing it is not upholding it, because upholding means " to maintain, affirm, or defend against opposition or challenge".  It is intended to be changed as society changes and our needs and understanding changes.

The constitution has provisions in it for changing it, so changing it by those provisions IS protecting and defending it. 

Upholding the constitution is the antithesis of what the founding fathers intended it to be.  And using "upholding" when "protect and defend" is the right term implies keeping it a set-in-stone, unchanging document.  Since it has been changed no fewer than 17 times in our nation's history (with about half a dozen other amendments still awaiting confirmation), it's obvious that upholding it isn't warranted or practical in a changing world.

Other than that clarification (a misused word, upheld, which changes the wording and meaning of the oath of office), I agree with you in principle.  But Obama isn't in charge of state laws.  It's up to the states to get their houses in order.  And we're talking red states run by people who hate our constitution with the single notable exception of half of an amendment in it.  So I don't ever see them voluntarily doing what is constitutionally mandated.

JBKaye13
JBKaye13

@CletusAhmashti why are you so worried about what people who aren't you or aren't with you are doing with their genitals?

arthurbuzzyd
arthurbuzzyd

Counties and municipalities derive their authority from the state and the equal protection clause of the 14th Amendment is enforceable against the states. Normally a state attorney general is a state's chief law enforcement officer with supervisory powers over all state law enforcement departments.

A responsible AG would and arguably should have notified all state law enforcement agencies that Scotus had ruled that Texas sodomy laws were unconstitutional.

DeweySayenoff
DeweySayenoff

@valentine.godoflove You seem to be massively entertained by your own posts.  Sadly, that entertainment seems to only ever be shared by the guy in your mirror.

evil.aaronm
evil.aaronm

@SarahConfran If I were arrested for doing something I didn't know was illegal, I'd be slapped 10 times to Sunday with, "Ignorance of the law is no excuse."  Why should these "officers" get a pass on that?

SarahConfran
SarahConfran

Actually they should be fired. It is common knowledge that these laws are unconstitutional especially given they are police. This was simply done to harass innocent people. Or they are incredibly incompetent. Each is reason for firing.

machinator99
machinator99

@cdblnr Ah yes, typical freetard GOPer; racing to the bottom of the barrel. America being more like Arabia would make religious nuts like you happy. Too bad you didnt get an education.

pjerky1
pjerky1

@anti-government I don't think oral is unusual. But honestly the government has no business regulating what we do in private among consenting adults. I would walk right in that court room and tell them they have no business telling me what I can do in my sex life and walk right back out in protest. 

JBKaye13
JBKaye13

@mary.waterton I totally agree.  I'm calling on all atheists to give SCOTUS the middle finger and start burning down Christian churches.  Are you with me?

...OH you only want to give SCOTUS the middle finger when SCOTUS rules in favor of something YOU don't like.  I SEE.  In that case, I have two words for you from your own precious prophet:  "Thou hypocrite!"

GregoryJudkowski
GregoryJudkowski

@mary.waterton@mary.waterton Whose moral system are we taking about?  I would take it you are a Christian, so you would be taking about Christian morals.  Is this not a secular state?  The belief system laid out in the bible is not the law of the land, and it should never be, no more than Sharia law is or should be.  The Constitution makes the separation of Church and State quite clear.  Is it not the responsibility of the SCOTUS to uphold this?  It sounds like you would much prefer to live in a religiously ruled state such as Saudi Arabia.  One where you, as a woman, would have little to no rights.  Don't forget that in the bible it clearly states that women were put here for mans use: "Your desire shall be for[a]your husband, and he shall rule over you.”

machinator99
machinator99

@mary.waterton you're a despicable human being ; guess what, you dont have any right to tell people what to do within their bedrooms. Boo friggin hoo, go read a Bible.

mantisdragon91
mantisdragon91

@mary.waterton Yes more states where people who have done nothing wrong can be arrested. Welcome to the American Taliban and meet one of their prime supporters Mary Waterton.

eagle11772
eagle11772

@IrishinToronto People in Louisiana know how to read ? !  I thought down there that they were still marrying their cousins and wondering what the word "shoes" means.

cjh2nd
cjh2nd

@gumshoo  

if you boycott every state that has stupid laws on the books, you're going to have to find leave the country

mary.waterton
mary.waterton

@GregoryJudkowski @mary.waterton

We don't live in a vacuum. Somebody's religion will predominate. In fact, the current government-mandated religion is atheism. Now why should the 5% that claims to be atheist get to rule over the 95% who believe in God? I'm all in favor of telling the SCOTUS to go to hell and returning this country to the principle of "majority rules". Non-violent civil disobedience is the way to put the out-of-control SCOTUS back in its proper place.

cjh2nd
cjh2nd

@eagle11772  

sweet zinger there. did you have to take a class in libtard smugness or are you just naturally that awesome?

machinator99
machinator99

@cjh2nd @eagle11772 he has an education, which disqualifies him from being a freetard GOPer


Freetard as in 'we dont have to pay taxes, but services should be free!' Freetard as in thinking that everything should be handed to you, but that paying taxes is 'unfair'. Freetard as in completely incapable of critical thinking.

eagle11772
eagle11772

@cjh2nd @eagle11772 No libtard here !  (Democrats and liberals are Evil.  PURE EVIL). I'm a Libertarian, AND a New Yorker, BROOKLYN-BORN, and THAT ALONE makes me......   AWESOME !!!  :)

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