February 21, 2002
MASSACHUSETTS COURT FINDS SODOMY LAWS INAPPLICABLE
TO
PRIVATE, CONSENSUAL CONDUCT
The Supreme Judicial Court (SJC) today ruled that the state’s centuries-old
sodomy laws are inapplicable to private, consensual conduct. In a
brief ruling, a unanimous court found that two provisions of Massachusetts
law that provide criminal penalties of up to 5 and 20 years for convictions
for oral and anal sex, respectively, may not be enforced against persons
who are engaged in such intimacy as long as the individuals did not intend
public exposure. In a case brought by Gay & Lesbian Advocates
& Defenders (GLAD), nine individuals who engage in intimate conduct
of the type prohibited by the laws challenged the constitutionality of
the laws because they criminalize common acts of intimacy. Although
the court technically dismissed the case because none of the plaintiffs
were currently subject to prosecution, the court for the first time declared
that neither of the Massachusetts laws apply to private, consensual conduct.
Jennifer Levi, GLAD attorney who argued the case before the high court,
commented, “This is a tremendous victory. The court today clarified
that these antiquated laws may not be used to intrude on individuals’ rights
to engage in common acts of intimacy in private settings. Moreover,
in a key part of the ruling, the court affirmed that neither the Attorney
General nor the district attorneys may prosecute anyone under the challenged
laws unless the conduct took place either in public or without consent.”
The case was filed in July, 2000, challenging the constitutionality
of these two criminal statutes that prohibit conduct regardless of whether
engaged in by gay or non-gay persons. The SJC’s ruling follows a
recent pattern of state courts striking down similar laws in other states
including Kentucky, Georgia, Tennessee, Arkansas and Minnesota. Earlier
in the 20th century, all 50 states had sodomy laws. A trend toward
legislative and judicial repeal began in the late 1960s but appeared stalled
when the United States Supreme Court upheld Georgia’s sodomy law in 1986.
After that decision, the movement to challenge such laws shifted to state
courts where the trend has accelerated. Presently 14 states have
sodomy laws, only 4 of which apply exclusively to same-sex conduct.
“This is an important decision because it reaffirms that these laws
cannot be used to target or scapegoat people. As a result of this
decision, these laws simply join a host of other statutes used to prosecute
public behavior and have no consequences beyond that. There is a
broad misconception that the intimate conduct gay, lesbian and bisexual
people engage in violates the law. That is not true and this decision
should clarify that once and for all.”
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