The Last Sodomites
For more than a century, oral and anal sex have been illegal in Minnesota, even in private and even when both parties are consenting adults. So in May, when Hennepin County District Court Judge Delila Pierce ruled that the state's anti-sodomy law was unconstitutional because it violated individuals' right to privacy, plenty of people rejoiced.
The ruling came as the result of a lawsuit filed against the state by the Minnesota Civil Liberties Union on behalf of a group of plaintiffs who could potentially have been charged with sodomy: a Minneapolis schoolteacher who could have lost his license if convicted under the law; a lesbian attorney who could have been evicted for having sex in her own home, because her lease prohibits illegal activity; and a married quadriplegic man for whom the law prohibited the only forms of sex he was able to enjoy.
At first, the decision was hailed as more a matter of principle than a matter of practice, since few people actually have been prosecuted for participating in the sex acts banned by the law: just 75 since the statute was put on the books in the 1880s, and only five in the last three years, according to the Minnesota State Court System.
But as the ripples from Judge Pierce's ruling spread through Minnesota's criminal justice system, they are raising an unexpected legal question. These days, attorneys say, few people are prosecuted specifically for participating in sodomy--oral or anal sex--but a larger, unknown number end up convicted of the crime. That's because individuals who are charged with more serious sex crimes are often allowed to plead guilty to the lesser crime. For example, says Assistant State Public Defender Lawrence Pry, some of the offenses that are typically pleaded down to sodomy are punishable by up to four years in prison. But sodomy is a gross misdemeanor, which calls for a maximum of up to one year in jail and/or a $3,000 fine.
From a prosecutor's point of view, the loss of the law as a plea-bargaining tool doesn't mean much, says Phil Carruthers of the Ramsey County Attorney's Office. He figures that only about two cases involving such plea bargains have come through the office in the past 30 years.
"That might have happened years ago for any number of reasons," Carruthers says. "But today if we were dealing with a forcible-rape case, for example, we wouldn't allow someone to plead down to sodomy, because [sodomy] is usually considered to be a consensual crime. Letting someone plead to that minimizes the offense too much. We'd just take the case to trial."
It's harder to say just exactly what the law's demise means for those previously convicted under it, because past Minnesota Supreme Court decisions say conflicting things about what happens after a law is declared unconstitutional. Some precedents, Pry says, suggest that those found guilty of sodomy should now be released from jail and their convictions should be wiped from their records. Those who have already served their time should be able to come forward and ask that charges be removed from their records, as well.
But, he continues, other past decisions seem to indicate that defendants charged with sodomy have the right to redress only if their attorneys called the sodomy law's constitutionality into question during court proceedings at the time. If nothing was said back then, nothing can be done now.
When the MCLU filed the recently concluded suit, executive director Chuck Samuelson was unaware that Pierce's ruling would have an effect on the handling of sex-crime cases. "Over the years the sodomy law has primarily been used in greater Minnesota against people that the powers that be in small towns wanted to run out of Dodge," says Samuelson. "But we pursued this because we believe people needed to really think about whether they wanted government deciding that the only way to have lawful sex was to be a married heterosexual and in the missionary position." The MCLU has been fighting to have the law struck down for more than two decades.
"This was obviously a statute whose time had passed for political and ideological reasons," says Pry. But on the other hand, he says, the law also acted as a safety valve. "A vindictive prosecutor can charge you with anything they want. Being able to plead to sodomy to escape bogus charges was a good thing in those cases."
Just how far Judge Pierce's ruling will reach remains to be seen. Pry is also concerned that some state law-enforcement officials--particularly those in counties that have been willing to prosecute people suspected of having oral or anal sex--won't abide by her decision. He predicts that someone will eventually challenge her ruling and take the case to a higher court.
The matter could end up in the court of appeals anyway, if Minnesota Attorney General Mike Hatch decides to challenge Pierce's verdict, which was technically a loss for his office. A spokesperson from Hatch's office says the attorney general is still considering his options. Even if Hatch does not oppose striking the law down, there might be good reason to appeal, some attorneys say; appeals court decisions would be more automatically binding across the state.
So far no one has contacted the Minnesota State Public Defender's Office for help appealing a sodomy conviction, Pry says. But he wants those who are thinking about it to consider the fact that if they were convicted of sodomy by pleading down from a more serious charge, dropping the sodomy conviction may lead to prosecution for the more serious charges originally filed against them. In many cases, he says, it won't be worth it. "I would tell anyone who called what I always tell people who are thinking about withdrawing a plea," he says. "'You have gotten a good deal here and things could get worse for you.'"
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