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 As such, many states repealed those bans — but not all.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.

Photo credit: Thinkstock.


Vicky P.
Vicky P3 years ago

pretty backwards state

pam w.
pam w3 years ago

What Alabama doesn't ''get'' is that the Constitution of the US is NOT the same document they call the bible!

This is NOT "The United States of Christians" and, whether or not they like it, millions of us aren't about to follow their bigoted ideas of what's acceptable, ''moral'' or ''godly.''

Bea W.
Bea Wilson3 years ago

I was sitting at my desk using my computer and found myself thinking about how much life has changed, I was asking questions (I'm alone but don't tell anybody I was talking to myself), then I read this article and found that I have no answers to the questions I had about this situation so I'm going to go back to scrubbing my floor and when I get done, I'm going to take a nap. That is my solution to one problem. When I wake up again maybe I'll be a little more clearheaded. Maybe I'll have a game plan that .............

Ken Y.
Ken Y3 years ago

another point

Kevin Brown
Kevin Brown3 years ago

Excellent article Steve, one thing though, the Fifth Amendment Double Jeopardy Clause does not apply to cases on appeal by the defendant. If a case is overturned on appeal it is basically a "do over" and Double Jeapardy does not apply.

Tammy I.
Tammy I3 years ago

Apologies for the cut off . . .

These lawmakers need to read the dictionary and acknowledge that most of them are sodomites according to the true definition of sodomy--as are many of us.

Literacy anyone?

Tammy I.
Tammy I3 years ago

Following the link from the article regarding the actual sodomy laws in Alabama, I found that first degree and second degree sodomy read the same--and actually refer to RAPE. I guess they are relying on phrase "deviate sexual intercourse" to carry their pathetic argument.. Geesh!

Here are the given definitions:

" a) A person commits the crime of sodomy in the first degree if:

(1) He engages in deviate sexual intercourse with another person by forcible compulsion; or

(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.

(b) Sodomy in the first degree is a Class A felony."

" a) A person commits the crime of sodomy in the second degree if:

(1) He, being 16 years old or older, engages in deviate sexual intercourse with another person less than 16 and more than 12 years old.

(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being mentally defective.

(b) Sodomy in the second degree is a Class B felony."

Yet, Merriam Webster defines sodomy as : "anal or oral copulation with a member of the same or opposite sex; also : copulation with an animal "

These lawmakers need to read the dictionary and acknowledge that most of them are sodomites according to the true definition of s

Martha Ferris
Martha Ferris3 years ago

There are so many outdated and stupid laws in every states books. They all need an overhaul.

Anita Breitner
Anita B3 years ago

Hoe Kafkaesque.

Vicki Brooker
Vicki Brooker3 years ago