Feb 20, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

VIRGINIA BEACH, Va. — Despite the U.S. Supreme Court decision last summer overturning sodomy laws, a Virginia judge sentenced a Virginia Beach man this week to three years in prison for solicitation of sodomy after he was arrested for propositioning an undercover police officer in a public restroom.

Circuit Judge Frederick Lowe suspended all but six months of the sentence he handed down to Joel D. Singson, a Virginia Beach native who entered a conditional guilty plea last August after prosecutors charged him with solicitation. Singson’s impending appeal of the decision will designate his case as the first to challenge states to bring their sodomy statutes in line with the Supreme Court’s ruling in Lawrence vs. Texas.

In June 2003, the country’s highest court ruled to effectively eliminate state laws prohibiting sodomy by saying that states cannot create or enforce statutes regarding the private sexual conduct of citizens.

“My client was charged with solicitation to commit a felony, and the felony he was to allegedly commit was sodomy, despite the Supreme Court’s ruling throwing out laws against it,” said Jennifer Stanton, Singson’s attorney. “This is a statute that carries five years in the penitentiary, and we’re talking about a criminal sentence for speech.

“It’s pretty harsh to sentence someone to five years in jail for speech, when actual public fornication receives only 12 months.”

Singson’s sentencing comes at a time when the Virginia Legislature is attempting to comply with the Supreme Court’s directive by rewriting its sodomy and public sex laws. Virginia’s current statute, the Crimes Against Nature law, deems sodomy between adults in either a public or private space a crime punishable by up to five years in prison and a $2,500 fine. Other sex offenses, such as lewdness or prostitution, receive misdemeanor penalties.

On Feb. 16, the Virginia Senate voted down a bill introduced by Sen. Patricia Ticer (D-Alexandria) that would have made sodomy legal for consenting adults as long as the act did not occur in a public space and did not involve prostitution. It also would have categorized public sodomy as a Class 3 misdemeanor, bringing it in step with other minor sex offenses.

Different penalties for gays
Instead, the House of Delegates voted in favor of markedly different sodomy legislation, which singles out public sodomy as a felony with a five-year prison term, but leaves other forms of public sexual activity as misdemeanors. Maintaining that the Lawrence vs. Texas decision only addressed private sodomy, Del. David Albo (R-Fairfax) wrote his bill to clarify that the court’s decision did not legalize public sex acts. Opponents of the measure have called it a new discriminatory law to replace an old one.

“We’ve been stressing equal penalties for equal sex crimes,” said David Lampo, president of the Virginia Log Cabin Republicans. “There are still plenty of prosecutors who want to target gay men for prosecution in this state.

Albo’s bill will move on to the Senate in the next few weeks, while Ticer must wait for the next Virginia Assembly to reintroduce hers. Ticer’s legislation received significant support from the Senate Courts of Justice Committee before it was killed on the floor, while the House Courts of Justice Committee initially stifled Albo’s bill, then surreptitiously placed it on the House uncontested calendar.

Virginia Attorney General Jerry W. Kilgore has resisted changing Virginia’s sodomy law despite the Lawrence ruling, claiming it could impinge on pending state cases, such as Singson’s. A spokesperson for his office told the Associated Press in January that it was not imperative for the state to rewrite its law because it does not distinguish between public or private, and same-sex or opposite-sex sodomy, unlike the former Texas law.

Despite the legislative wrangling, a Virginia Court of Appeals could wind up ultimately deciding the fate of the state’s sodomy law, since Singson’s case pushes all of the legal hot buttons addressed by the Lawrence decision.

“The Court of Appeals is bound by the Supreme Court’s decision based on the federal Constitution. In order for it to uphold the conviction, it will have to decide if Singson’s case has a factual distinction from the Lawrence case,” said Anne Coughlin, a University of Virginia law professor. “If what Mr. Singson was proposing to the undercover officer was that the two of them have consensual, non-commercial sex, there’s no crime under Lawrence. The state has to respect those private activities and it has to respect whether engaged in by straights or gays.”

Last March, an undercover police officer met Singson online and persuaded him to ...