What Doesn’t Alabama Get About Sodomy Bans Being Unconstitutional?
Alabama’s Court of Criminal Appeals recently overturned the state’s unenforceable sodomy ban, but the state’s Republican attorney general wants a review of that decision because, he says, it leaves gay and straight people dangerously unprotected.
The case, known as Dewayne Williams vs. State of Alabama, involves Mr Williams, of Dallas County, who was arrested and charged with first degree sodomy in 2010 after a hotel clerk accused him of sexual assault. First degree sodomy carries a prison sentence of no less than 10 years.
Williams has always contended that this sexual contact was consensual. The jury in this case was uncertain enough to reject the first degree sodomy charge, appearing to accept that consent may have been given. Unfortunately, and because of the very particular wording of Alabama’s sodomy law, consent doesn’t matter and they found Williams guilty of the lesser charge of sexual misconduct.
The Alabama law is a historic relic that had been used to almost exclusively punish homosexuals by making non-vaginal sex a crime. In particular, the law actually ignores consent (code section 13A-6-65,), saying: “Consent is no defense to a prosecution under this subdivision.” Therefore, Mr Williams’ claim that the man with whom he had sex consented still meant that a jury could find him guilty even though there was no solid evidence a crime had been committed.
What’s worse is that, technically, the state should not have this law on the books at all. The United States Supreme Court ruled in 2003 in Lawrence v. Texas that all sodomy bans are unconstitutional because they attempt to regulate the private conduct of citizens. As such, many states repealed those bans — but not all. There are at least eleven other states alongside Alabama that retain their bans and use them to prosecute.
As such, in a unanimous ruling,g the Alabama Court of Criminal Appeals decided that the law was being used to restrict consensual acts, something that is entirely unconstitutional. It’s important to note that this ruling is actually quite narrow and doesn’t say whether Williams did or did not commit any other offense (for instance, whether he raped the man), only that Alabama State’s use of the sodomy law, and in particular the language on consensual sex, is unlawful.
The ACLU, which represented Mr Williams, is pleased with the ruling. Susan Watson, executive director of the American Civil Liberties Union of Alabama, is quoted as saying: “Aiming to ban consensual sex is flat out wrong. A person’s sexual orientation shouldn’t matter. Consensual sex is consensual sex.”
However, the state’s Attorney General Luther Strange is urging the court to reconsider its ruling, saying that while the language as it was applied here is unlawful, the sodomy ban should stay on the books because, essentially, it protects people in cases of sexual misconduct, assault and rape, with the state asking that the Court strike only a portion of the law and remand the case back to trial so that Williams can be tried again. Of course, this is probably unlawful as someone cannot be tried twice for the same crime under the Fifth Amendment’s Double Jeopardy clause. Nevertheless, the prosecution believes the court should have done more.
Without saving the statute, Alabama’s Attorney General is arguing that other cases will now become unsafe: ”The Williams decision leaves all Alabamians less protected from non-consensual sex and potentially calls into question numerous past convictions, involving both heterosexual and homosexual defendants and victims,” Strange is quoted as saying.
It’s unclear whether the state will bother appealing to the Alabama Supreme Court because it seems clear that the Court will agree with the appellate ruling.
What’s particularly baffling in this case is the fact that Alabama seems to be operating as though only just having about Lawrence v. Texas ruling. As was made abundantly clear to then-Virginia Attorney General Ken Cuccinelli earlier this year, states should not be using sodomy bans to prosecute because they are unlawful. Alabama has had more than a decade to do something about this problem, yet it has failed to act.
Also, we might take particular exception on the Attorney General placing the onus to fix the law on the courts. The courts should never be in a position of fixing any legislation. The Alabama legislature should have repealed the sodomy statute and passed laws to plug the gaps, if there are any, in coverage so as to ensure that sexual crimes can still be prosecuted properly. The attorney general’s ire is, therefore, misplaced. He shouldn’t be petitioning the courts, he should be asking the legislature, Democrats and Republicans alike, to actually legislate.
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