Alabama court overturns gay sex ban

Scales of justice and gavel

MONTGOMERY, Ala. (AP) – A state law criminalizing consensual homosexual conduct is unconstitutional, an Alabama appeals court has ruled.

The Alabama Court of Criminal Appeals declared the so-called sexual-misconduct law unconstitutional based on a 2003 U.S. Supreme Court decision that overturned a similar Texas law on due-process grounds. The judges said no other Alabama court had addressed the law’s constitutionality.

LGBT rights advocates hailed the decision, while the prosecutor who had tried to convict a man under the law after the defendant allegedly forced another man to have sex said it hurts the victim.

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. The court issued its ruling Friday.

“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 issues,” Ben Cooper, leader of Equality Alabama, said Monday. Equality Alabama is a state nonprofit group that advocates equal rights for people of all sexual orientations.

Susan Watson, executive director of the ACLU of Alabama, said it is about time for Alabama to recognize the Supreme Court’s decade-old decision.

“Consensual sex is just that – consensual – regardless of an individual’s sexual orientation,” she said in a statement. “We don’t need government in our bedrooms.”

The state attorney general’s office brought the case to the court after a prosecutor failed to persuade a jury to convict a defendant on a felony charge of first-degree sodomy. The jury had convicted the man of the lesser, misdemeanor charge of sexual misconduct and a judge gave him the maximum 12-month jail sentence. Under the Alabama law the appeals court overturned, sexual-misconduct involves oral or anal sex, and consent is not a defense.

The prosecutor, Michael Jackson of Selma, said Monday that he understood why the appeals court ruled the way it did, and said the decision would likely 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,” Jackson said. He said Alabama’s sodomy law still applies in cases of forced sex.

In Friday’s ruling, the appeals court said the Legislature passed the law to make all homosexual conduct criminal. But it noted that because of the Supreme Court’s ruling in the Texas case, Alabama’s attorney general had conceded the law is unconstitutional “to the extent that it applies to private, legitimately consensual anal and oral sex between unmarried persons.”

Strange’s office had encouraged the appeals court to rule in a way that would allow the defendant to be tried again, but it didn’t. His office did not immediately respond to two telephone calls Monday requesting comment.

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