Last Friday, the Alabama Court of Criminal Appeals ruled that consensual anal sex between two male adults is legal. The state's ban on sodomy, covered under its "sexual misconduct" statute, is officially unconstitutional.
Which would be a remarkable milestone, if not for the fact that the Supreme Court declared this kind of law unconstitutional more than a decade ago. In its 2003 ruling in Lawrence v. Texas, the justices struck down Texas's sodomy ban, invalidating similar laws in 13 other states, including Alabama. "The court could not have been clearer that sexual relations between consenting adults is permissible," said Suzanne Goldberg, a law professor at Columbia University who specializes in gender and sexuality. Right after the ruling, Alabama's attorney general even acknowledged that it would nullify the state's sodomy laws.
So why did Alabama prosecutors try to convict a man, Dewayne Williams, on sodomy charges—seven years later, in 2010? Why did it take until 2014 for a state court to acknowledge a decade-old federal ruling?
The simple-sounding answer probably isn't the right one. "The notion that there’s a serious commitment to use the law to prosecute sexual acts in Alabama is a non-starter," said Ronald Krotoszynski, a constitutional law professor at the University of Alabama. The real question is this, he said: "Why don’t lawmakers clean up these codebooks?" When federal courts make rulings that affect state laws, those laws can theoretically stay written the same way—they may just carry the minor inconvenience of being unconstitutional.
It's possible that this is a pure case of administrative and prosecutorial laziness—it's a lot of trouble to make constant codebook revisions in state legislatures. And the prosecutors in last week's appeals case, Williams v. Alabama, may not have done their homework and read up on high-profile Supreme Court rulings from the past decade.
But probably not. "There’s a small minority that views laws as 'expressive functions.' They want them on the codebooks," even if they've been ruled unconstitutional in higher courts, said Krotoszynski. In other words, sexual morality laws aren't just laws; they're symbols, too. This case points to the many symbolic anachronisms in the state's legal code—like the fact that a man cannot be legally convicted of raping another man. As the laws are written, consensual sodomy is banned in Alabama. Even though that's unconstitutional, it's not meaningless.
"There's a famous Alabama case saying that sodomy is such a detestable crime that it didn't need further definition." Joseph Colquitt, a law professor at the University of Alabama, chuckled at the thought: a legal definition based on a lack of definition. In the 1970s, he was one of the legal reporters who helped draft Alabama's original sexual-assault statutes; around this time, many states were trying to codify definitions that had previously been "common law," or generally accepted standards based on precedents.
Indeed, a 1969 Alabama appeals-court decision described sodomy this way: "It is characterized as as abominable, detestable, unmentionable, and too disgusting and well-known to require other definition or further details or description."
"A lot of states retain the idea that it was against the law for persons of whatever gender to engage in sodomy activity; it was a word used in common law," Colquitt said. "Everyone knew what sodomy was: It’s a crime against nature."
But the 1970s law had at least one very clear intention: criminalizing gay sex. In the original draft, the commentary says, the ban against "sexual misconduct" was all about consent: If someone made any kind of unwanted sexual conduct with someone else, it would be treated as a crime, the same way vaginal sex was treated. But it goes on: "If both actors were adult and both consented, there was no offense; but this subdivision was changed by the legislature to make all homosexual conduct criminal."
Consent, it notes, is "no defense."
This is where things seem to have gotten tricky in last week's ruling in Alabama. According to court documents, Dewayne Williams was staying at a motel in Selma on January 10, 2010. After hanging around the lobby for most of the day, the prosecution alleges, Williams grabbed a staff member, A.R., "by his throat and pushed him into the bathroom in the office. Williams told A.R. to not say anything or scream and that if A.R. did, Williams would choke A.R. harder. ... Williams proceeded to sodomize A.R."
Williams was indicted on one count of sodomy in the first degree, which is an act of "deviate sexual intercourse with another person by forcible compulsion." Although he wasn't ultimately convicted on this charge, he was convicted on a lesser offense: sexual misconduct, which outlaws any kind of non-vaginal sex outside of marriage. This is the part that was later ruled unconstitutional; as the Supreme Court said in Lawrence, sex between two consenting adults—no matter what kind of sex it is—is okay. "The jury had a reasonable doubt perhaps ... of the truthfulness of the motel clerk’s testimony on lack of consent," Colquitt wrote in an email. "In hindsight, one might surmise that the best course of action in Williams would have been to ... [give] the jury a binary choice—conviction or acquittal. Following that approach would have been in keeping with Alabama law and procedure and would have made Lawrence irrelevant."
At the end of the case, the prosecutors seemed to agree—they admitted that the sexual misconduct charge wasn't legal and asked the appeals court to hold that this statute is now about consent, not just having sex. The court refused: It can't make laws, it can only interpret them, it said. Besides, any new law wouldn't retroactively apply to a crime that have already happened, and Williams couldn't be prosecuted again, either—that would be a violation of double jeopardy. So, that's where things ended up: Williams was acquitted and consensual sodomy was officially declared legal.
Everyone I spoke with found the prosecutors' strategy questionable. "In a rational world, it would be hard to explain why a prosecutor would rely on a clearly invalid law," Goldberg said. Given the fact that Alabama's attorney general openly recognized that the state's sexual misconduct law was unconstitutional, "the decision to charge under the anti-sodomy law appears deeply problematic at best," said Krotoszynski.
But as a non legal expert, my question was a little more basic: Why wasn't this prosecuted as a rape?
It turns out that this is another anachronism of Alabama's sexual assault laws: For something to be considered "rape," it has to involve "sexual intercourse with a member of the opposite sex by forcible compulsion." Originally, the language was even more gendered, said Colquitt; it was a crime of a man against a woman. Some time after 1980, the concept of female rape was incorporated, but as it stands, it's legally impossible for a man to get convicted of raping another man. Instead, the word that's still used is "sodomy," also called "non-rape sexual battery."
This is a significant linguistic choice: In one short phrase, it discounts the weight of male-on-male sexual assault and uses a loaded, emotional, and often pejorative term.
"My own view is that it would be better to simply excise 'sodomy' from the criminal code in favor of a less freighted nomenclature," Krotoszynski said. "The real question is: Why doesn’t the legislature routinely update the law to reflect contemporary values and norms?"
Other Southern states have done just that; just a few months ago, Virginia's legislature unanimously repealed the state's anti-sodomy laws. It could be that Alabama is just lagging behind, but the thing is, the state actually has updated its sexual conduct laws—just not about this. Starting on July 1, a brand new law against bestiality will go into effect; it bans any sexual contact, "however slight," between a person and an animal.
In 2005, Colquitt wrote an Alabama Law Review article outlining the updates that need to be made to the state's codebook. After it was published, a committee was appointed to go back through the code and put together suggested revisions to present to the Alabama state legislature.
But it seems remarkable that more than ten years after Lawrence, these legacy laws are still on the books—and, as Williams proves, they're still being used to prosecute people. "The South has often lagged behind the rest of the country in taking unconstitutional laws off the books, and even in ending enforcement of unconstitutional laws," Goldberg said.
In Alabama, this is clearly true, and here, it seems to be a question of politics. As Krotoszynski put it, "If Alabama legislature saw a sufficient political upside in doing what Virginia did, they would do it."