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Is Gay Sex Illegal?

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Question: Is Gay Sex Illegal?
Though the federal sodomy laws were repealed in 2003, in America, some states still have language on the books that criminalizes gay sex.
Answer:

For many years, America had sodomy laws that banned a variety of different types of non-procreative sex. Some of these applied to everyone, but in nine states, they only applied to same sex couples.

However, in 2003, the United States Supreme Court declared that sodomy laws were unconstitutional, and the laws were repealed. This case is referred to as Lawrence vs. Texas.

You would think that would be the end of the story, but in some places around the country, that hasn't been the case. One issues is that despite Lawrence vs. Texas, eight states still have what are called "crimes against nature" laws on the books.

"Crimes Against Nature" laws make it a crime to have sex that is not considered "natural." So what isn't natural? Well, bestiality (sex with animals), and necrophilia (sex with dead people), are usually on there. But often, so are homosexual sex acts, anal sex, and occasionally even oral sex.

Though most states understood that crimes against nature laws were invalidated by the passage of Lawrence vs. Texas, a few states did not.

One state where this has been an issue is North Carolina. As the North Carolina Gay and Lesbian Association explains, in this state:

"Law enforcement officers and prosecutors argue that they continue to enforce and press charges for crimes against nature because the laws against prostitution, sex with minors, and the like are not worded broadly enough to include oral and anal sex. While this rationale may seem reasonable at first, the problem is that enforcement of the crimes against nature law penalizes homosexual men more severely than heterosexuals for sexual activity in secluded areas. For example, a heterosexual couple "parking" at night in a deserted area or making love in the woods will most likely be ignored by law enforcement officers. At most, they will be charged with indecent exposure, a misdemeanor. Two men in an identical situation, however, will usually be charged with crimes against nature—a felony."

In Virginia, there are anecdotal reports that gay men are still being arrested under sodomy laws despite that fact that sodomy is no longer a crime. As one commenter on the Bilerico Project blog wrote:

"I...complain[ed] to the Attorney General concerning a practice of some of Virginia's local law-enforcement jurisdictions, where they continue to make arrests for violations of Virginia's sodomy laws, imprisoning men for violations of those laws, then having the judges dismiss those charges when the men are brought to trial - not at arraignment, but at actual trial. I reminded the Virginia AG's Office of Lawrence v. Texas, and how the Supreme Court had issued a decision which negated all sodomy laws, nationwide. The AG's Office informed me Virginia has not repealed their sodomy laws, so that arrest under those laws was still justified, and the process in place was correct: local jurisdictions follow the laws on the books, a trial court dismisses those charges to conform with federal court decisions; that was "how the system works."

Additionally, even if they don't act on them, some states still have laws on the books that criminalize same sex sexual intercourse. One of these is Montana where same sex sex is still considered a "deviant" sex crime. A Democratic State Senator, Tom Facey, has introduced a bill to remove the language in the law that makes gay sex a crime. But as a local news station explains, "Opponents of the bill argue law enforcement needs the law in order to prosecute crimes of homosexual rape."

This is a fairly typical (though totally absurd) argument for keeping the laws. Another reasons that such laws remain is that states sometimes keep invalidated laws on the books in case the Supreme Court reverses an earlier decision. So, for example, if Lawrence vs Texas was reversed, then the state wouldn't have to try to pass new laws criminalizing sodomy.

So despite the fact that there are no longer laws that officially make it a crime to have sex with the same sex, some states still twist the law to prosecute gay men in this way.

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