Giving New Meaning To "Down & Dirty"
John A. Quayle
blueoval at SGI.NET
Mon Feb 25 22:03:20 MST 2002
SJC limits prosecution for sodomy
By John Ellement, Globe Staff, 2/22/2002
[This story ran on page A1 of the Boston Globe on 2/22/2002.]
In a ruling hailed as historic by gay rights advocates, the state's highest
court yesterday gutted longstanding sodomy laws, ruling that people who
engage in sodomy in semipublic places such as parking lots, wooded areas,
and public beaches cannot be prosecuted as long as they make sure they
cannot be seen by others.
The ruling was sought by Gay & Lesbian Advocates & Defenders in order to
end what it considers discriminatory treatment by law enforcement toward
gays and to extend the same rights of privacy and freedom enjoyed by
heterosexuals to gay men and lesbians, said Jennifer L. Levi, the GLAD
lawyer who argued the case before the Supreme Judicial Court.
''For the first time, the court has said that neither of the state sodomy
laws apply to private consensual conduct,'' Levi said. ''What this means is
that antique laws cannot be used to intrude on people's right to engage in
acts of intimacy when they are in private.''
Levi said she expects the ruling to curtail, if not eliminate, law
enforcement sweeps on so-called gay cruising areas such as highway rest
stops. She said police have used the antisodomy laws to target gays for
criminal prosecution while not applying the same standard to heterosexuals
engaged in the same acts in lover's lanes. ''By limiting the scope of these
laws, we take away some of the police's ability to target gay people in a
discriminatory way,'' Levi said.
But CJ Doyle, executive director of the Catholic Action League of
Massachusetts said the ruling could lead to more sexual activity in public
and deter some families from using public places.
''It means people won't be able to take their children walking in the Blue
Hills. It means people won't be able to use rest stops,'' he said. ''It
means that people will have to be more careful about traveling on public
Doyle also said he wasn't surprised by the SJC decision. ''It doesn't
contain a single justice who supports traditional morality,'' Doyle said.
''This will prevent reasonable efforts by law enforcement to prevent lewd
displays of public behavior. It will leave more limitations on the freedom
of ordinary citizens and families to enjoy public places.''
In the unanimous ruling written by Justice Roderick I. Ireland, the court
technically threw out the case on the grounds that none of GLAD's
plaintiffs were currently facing criminal prosecution for violating the two
antisodomy statutes, first codified in 1697.
Before it dismissed the case, the court gave GLAD some of what it wanted by
extending to the antisodomy laws rulings from 1974 and 1981 that
decriminalized other forms of private, consensual sexual acts between
In those cases, known as Balthazar and Ferguson, the SJC set out broad
definitions of a public place and also set the standards prosecutors must
meet before they can win a conviction. Among other things, the court said
the fact that someone else sees the sex act does not by itself make the
behavior criminal. Instead, prosecutors must show that the individuals knew
they could be seen by others and performed the sex act anyway.
''We now clarify that our holdings in the Balthazar and Ferguson cases
concerning acts conducted in private between consenting adults extend'' to
the antisodomy laws, Ireland wrote in yesterday's three-page ruling.
GLAD's plaintiffs, who included a married heterosexual couple, specifically
wanted the SJC to tell them if performing sodomy in a ''wooded outdoor
area, vehicles parked in parking lots, and secluded areas of public
beaches'' would expose them to prosecution.
The SJC declined to revisit the definition of what is a public place and
what is a private area, ruling only that acts of sodomy are legal as long
as they are done in private or out of public view.
Levi said she would have welcomed a broader ruling, but said that by
linking its ruling to the two earlier cases, the SJC has made the new
ground rules clear.
The attorney general's office defended the antisodomy laws before the SJC,
while noting that prosecutions under the laws are rare. As part of the GLAD
suit, the attorney general's office, along with the Suffolk and Middlesex
district attorney's offices, agreed that no one would be prosecuted under
the statutes unless the act was performed in public, or there was evidence
of coercion or violence.
Ann Donlan, a spokeswoman for Attorney General Thomas F. Reilly, downplayed
the significance of the SJC ruling, saying that it merely restated existing
law and that the court had not found the law unconstitutional, as GLAD had
Massachusetts has two antisodomy statutes, one prohibiting ''the abominable
and detestable crime against nature,'' which case law has defined as anal
sex, and one prohibiting ''unnatural acts,'' which various court rulings
have applied to both oral and anal sex.
This story ran on page A1 of the Boston Globe on 2/22/2002.
© Copyright 2002 Globe Newspaper Company.
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