Lawsuit: Sodomy ban ‘unconstitutional’

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U.S. Probation and Pretrial Services

The federal courthouse in Jackson

Five Mississippians have sued to overturn a state law outlawing sodomy, arguing the prohibition is unconstitutional.

Using the aliases Arthur, Brenda, Carol, Diana and Elizabeth Doe, the plaintiffs said through filings in U.S. District Court last month that the state’s anti-sodomy law violates the Fourteenth Amendment by making consensual anal and oral sex illegal.

The state’s 74-year-old statute has been at odds with federal law since the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which declared similar anti-sodomy statutes in Georgia and Texas unconstitutional; the ruling also overturned a 1986 Georgia statute, which said certain intimate sexual acts had no constitutional protection.

“Despite this clear proclamation made more than a decade ago, Mississippi continues to enforce its criminal statute prohibiting sodomy, titled Unnatural Intercourse… by requiring people convicted of Unnatural Intercourse to register as sex offenders and follow myriad, onerous prescriptions on their everyday life pursuant to Mississippi’s sex offender registry law,” the plaintiffs’ complaint states.

The suit explains that the plaintiffs are suing state officials responsible for upholding and enforcing the law and state sex-offender registry. These are Attorney General Jim Hood; Albert Santa Cruz, commissioner of the Department of Public Safety; Charlie Hill, director of the Mississippi Sex Offender Registry; Col. Chris Gillard, chief of the Mississippi Highway Patrol; and Larry Waggoner, director of the Mississippi Bureau of Investigation.

Attorney General Jim Hood said his office would defend the constitutionality of the state’s sex offender registry—but he stopped short of  mentioning the anti-sodomy statute in question.

“Our office will defend the constitutionality of our sex offender registry. The individual plaintiff cases will be fact specific, requiring a lengthy analysis of each case. The registry is a vital safety tool for Mississippi families,” Hood said in a statement.

In addition to naming Jim Hood as a defendant, the case shares principal players with another recent Fourteenth Amendment challenge to state law: House Bill 1523. Rob McDuff is representing the plaintiffs in this case along with California attorney Matthew Strugar and the New York-based Center for Constitutional Rights; McDuff was the attorney on Barber v. Bryant, one of the two cases that ultimately overturned the law. U.S. District Court Judge Carlton Reeves, who made national headlines in June with his sweeping ruling knocking down House Bill 1523, has been assigned to preside in the new case.

Although the plaintiffs center their argument on the statute’s unconstitutionality, the sex-offender registry, on which each of the plaintiffs is listed, is a central point of contention in the suit. Plaintiffs claim that registering as a sex offender, a general requirement for anyone convicted of a sex crime in the state, has been an undue burden and dangerously stigmatized them, all to service a law they say should have been wiped off the books a decade ago.

Registered sex offenders in Mississippi must fulfill a number of requirements, including notifying members of their community of their sex-offender status. They also must register at a Department of Motor Vehicles office and then re-register there every 90 days. Their contact with children, regardless of the nature of the sexual crime is severely restricted. They cannot live within 3,000 feet of a school, childcare facility or recreational facility used by children. Attending a function at their child’s school requires advance approval from the Department of Public Safety.

The first plaintiff, Arthur Doe, was convicted in 1979 of a “crime against nature with mankind,” which is how the statute defines sodomy. The four female plaintiffs were each convicted of solicitation under a Louisiana statute that deemed prostitution a registerable sex offense. In 2013, Louisiana removed anyone convicted of prosecution from its sex-offender registry. Mississippi, however, still keeps these registrants on its own sex offender registry, despite the fact that prostitution was never a registerable offense in Mississippi.

The suit alleges that being on the registry has cause the plaintiffs harm. Some say they have been physically attacked. Others mention lost housing and jobs.