Wednesday, June 18, 2014


While many states are battling over same-sex marriage, Alabama has only just ruled that prohibiting homosexual sex is unconstitutional.  Civil rights organizations in Alabama are cheering a state appeals court ruling that declared part of a state sexual misconduct law as unconstitutional.

Under the statute, consensual oral and anal sex was banned in what the court determined was an act aimed at criminalizing homosexual activities. Furthermore, the statute has been traditionally interpreted to criminalize all sexual practices other than the missionary position between one man and one woman.  The portion of the law cited in the Alabama Court of Criminal Appeals ruling includes: "Consent is no defense to a prosecution under this subdivision."  The sixteen page ruling by the Court of Criminal Appeals can be read in it's entirety by following this link.  (It's well worth reading, and I found it quite interesting.  Plus I'd love to know silvereagle's opinion on this case and the ruling.)

The ruling was unanimous in the case of Dewayne Williams vs. State of Alabama. Williams, a Dallas County, Ala., man, who, although was not convicted in 2010 of first-degree sodomy, was convicted of the "lesser-included offense" of sexual misconduct, according to the ruling. Williams acknowledged he had taken part in the sodomy but argued it was consensual, the ruling states.

Alabama is one of a dozen states that still have laws prohibiting consensual homosexual sex, according to a survey by the Human Rights Campaign, a national group advocating for lesbian, gay, bisexual and transgender rights.

Susan Watson, executive director of the American Civil Liberties Union of Alabama, applauded the ruling.   "Aiming to ban consensual sex is flat out wrong," she said Saturday. "A person's sexual orientation shouldn't matter. Consensual sex is consensual sex."

Ben Cooper, chairman for Equality Alabama, also lauded the ruling and added the law was "settled years ago" under Lawrence v. Texas, a case the Alabama court referenced in its decision. In the 2003 case, the crime for two persons of the same sex to engage in certain intimate sexual conduct was determined to violate the due process clause of the 14th Amendment.

"Each and every person, no matter their sexual orientation or gender identity, is entitled to equal protection under the law," Cooper said in a statement. "The Alabama court's unanimous decision overturning the statute is a step in the right direction and makes us optimistic for future and ongoing equal rights through the continued elimination of unconstitutional provisions in our state's constitution that violate privacy and equal protections."

Michael Jackson, the prosecutor in the Williams case, said Monday that he understood why the appeals court ruled the way it did, and said the decision would probably be upheld if appealed to the Alabama Supreme Court. But he said the victim is not getting a fair result because the sex in the case he was prosecuting wasn't consensual.

"He got attacked by another man and he had sex he didn't want to have," said Jackson. He said Alabama's sodomy law still applies in cases of forced sex.  For the record, Jackson has no business prosecuting sexual misconduct.  As District Attorney for Fourth Judicial Circuit of Alabama, Jackson has often hired female prosecutors based on their ample breasts and how often they will go to bed with him.  Jackson himself should be tried for sexual misconduct and sexual harassment.  He is a further disgrace to the already disgraceful Alabama judicial system.

The state of Alabama also was denied its request to remove the language on consent from the law and remand Williams' case for a new trial. The Alabama appeals court explained in its ruling that a remand of the case would violate the double jeopardy clauses of the Fifth Amendment to the U.S. Constitution and the Alabama Constitution and that by amending the statute the Court would be creating and ex post facto law that would further violate the U.S. Constitution.

The question does remain as to whether the sex between the two men, Williams and the unnamed clerk at the Jamison Inn Hotel, was consensual as Williams claims in his defense.  However, because the prosecution knew they could not convict Williams of first degree sodomy, which had been struck down by Lawrence v. Texas, they chose an obscure section of the clause which made the question of consent moot.  The clause used stated that "Consent is no defense to a prosecution under this subdivision."  Therefore the prosecution cannot have the trial remanded because Williams would be tried twice for a crime in which he has already been convicted.

There are two things that really surprise me about this whole case.  First, that Jackson attempted to prosecute Williams in the first place for sodomy, when if he is going to claim that no consent was given, then he should have charged Jackson with rape and assault.  Instead, he charged him with sodomy and sexual misconduct.  For me this proves, not only Jackson's incompetence as a prosecutor, but also that there was insufficient evidence that the sex between Williams and the hotel clerk was not consensual.

Second, the other, and actually most surprising thing, considering that Roy Moore is the head of the Alabama Judicial System, is that the all Republican Alabama Court of Criminal Appeals actual made  a ruling that made sense and followed the law.  Moore's philosophy of justice is that whatever laws he deems appropriate in his head are the only ones that need to be followed, so for a lower court under his authority to make a ruling that actually follows the law is astounding.  Maybe there is hope for Alabama's Republican controlled judicial system after all.


Michael Dodd said...

Maybe there is hope for Alabama's Republican controlled judicial system after all.
One can always hope!

silvereagle said...

Professor. I think you correctly saw the true reason for the jury decision and for the appellate courts decision: " he should have charged Jackson with rape and assault. Instead, he charged him with sodomy and sexual misconduct. " From reading between the lines, the jury was not convinced (at least not all members of the jury) of the lack of consent on the part of the desk clerk. Had they been so convinced they would have found the defendant guilty of the larger charge, not the lesser charge. And, even though it is not stated in the courts opinion, this had to enter into their reasoning. To me it is clear that some members of the jury were adamant in finding the defendant guilty of something, and this was the only something they could find. And, others were holding out for an acquittal and this was a compromise decision...

And the court was correct in its final decision, no retrial, and reversal.

(One might wonder if some of the court personnel might in fact be guilty of some of these acts somewhere along the line in their life...after all, they are males...) No disrespect intended. "But for the grace of God there go I...."

Coop said...

I'm glad this happened. What a truly stupid law that was.