Virginia Court of Appeals Affirms Sodomy Statute - Privacy

Text of the ruling upholding ten appeals from criminal conviction for solicitation to commit oral sodomy in violation of Code §§ 18.2-29 and 18.2-361.

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III. PRIVACY

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Appellants contend that by inhibiting their ability to engage in homosexual conduct with other similarly disposed persons, Code § 18.2-361 infringes their right to privacy. In so arguing, they assert the privacy rights of married persons and of persons who, unlike them, may engage in such conduct in private. But the appellants' conduct was not private. Whatever may be the constitutional privacy rights of one who engages in sodomy in private, those rights do not attach to one who does the same thing in public. See Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977 (1976). Lovisi involved a challenge to the constitutionality of the predecessor to Code § 18.2-361. Mr. and Mrs. Lovisi engaged in sodomy with a third person in their home. They permitted themselves to be photographed committing those acts. The pictures fell into the hands of their children and became public. Lovisi claimed the statute unconstitutionally invaded his right of privacy. The court held that through publication Lovisi's acts ceased to be "private."

The court said:

The Court is faced with the . . . question of whether, if the Lovisis' conduct was not constitutionally protected, they may attack the constitutionality of [the statute] on the basis of the rights of third persons. . . . The Court . . . holds that they do not have standing to assert the constitutional rights of other persons and thus may not attack the constitutionality of statutes underlying their conviction on this basis. Id. at 623-24.

The activities underlying the charges against the appellants were not conducted in private. Their solicitations were made to strangers in public parks. They proposed to commit sodomy in the public parks. The appellants' acts and their proposed conduct were clothed with no circumstance giving rise to a supportable claim of privacy. Those acts and proposed conduct fall squarely within the rule of Lovisi.