Sheriff's deputies in one Louisiana parish are unlawfully entrapping and arresting adult gay men under an unconstitutional anti-sodomy law struck down by the US Supreme Court a decade ago.
The Advocatereports the East Baton Rouge Parish Sheriff's Office (EBRSO) has been conducting undercover sting operations in Manchac Park in which deputies target gay men who agree to meet them to have consensual, non-commercial sex in private locations away from the park. The men are then arrested and charged with attempted 'crime against nature' under a state anti-sodomy law which was rendered unconstitutional following the Supreme Court's 2003 Lawrence v. Texasruling.
In that landmark case, Houston police responding to a reported weapons disturbance in a private residence stumbled upon two men engaging in private, consensual gay sex and arrested them under the state's anti-sodomy law. By a 6-3 vote, the Supreme Court found in favor of the arrested men, declaring that "their right to liberty under the Due Process clause (of the Fourteenth Amendment) gives them full right to engage in their conduct without the intervention of the government" and that Texas' anti-sodomy law "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."
Lawrence v. Texas invalidated state anti-sodomy statutes, although they remain on the books in several states. Most recently, Montana decriminalized gay sex in April over the objection of dozens of Republican lawmakers who voted to keep the state's unconstitutional law, which made homosexual acts a felony, on the books. In Virginia, state attorney general and Republican gubernatorial candidate Ken Cuccinelli is locked in a heated battle against a federal court which recently struck down the state's anti-sodomy law. Cuccinelli wants the law to remain in effect.
In Louisiana, where 'crime against nature' is defined as "unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal," EBRSO deputies reportedly arrested at least a dozen men under the invalid law since 2011. Deputies used the law to arrest men who even so much as discussed or agreed to having consensual sex in private. District Attorney Hillar Moore III has refused to prosecute any of the cases after his office determined that no actual crimes had occurred. Still, the arrests continued.
"This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing laws passed by our Louisiana legislature," EBRSO spokeswoman Casey Rayborn Hicks told the Advocate. "Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted."
The highest court in the nation has already determined that such laws are indeed unconstitutional and therefore invalid and unenforceable.
Unfortunately, local judges have been setting bond in cases in which the arrested men have been brought before them for review.
"In the cases we discussed, bond was set," Hicks told the Advocate. "In effect, the judges concurred that there was probable cause for an arrest."
Legal experts universally agree that this is unacceptable.
"If two adult men can have consensual oral sex in private, they can invite another adult man to do that in private," Yale Law School professor William Eskridge told the Advocate. "So even if there were a verbal offer and acceptance, it would be constitutionally protected, so long as no money was involved and the men were of age."
EBRSO deputies claim that such illegal sting operations deter unlawful sexual activity in Manchac Park, which is a notorious rendezvous for homosexual trysts. Some men masturbate or engage in illegal public sexual activity in the park, although Baton Rouge Recreation and Park Commission spokeswoman Cheryl Michelet told the Advocate that there have not been many complaints of such behavior.
In the wake of the Advocate's blistering exposé, EBRSO at first denied that it targeted gay men 'cruising' for consensual sex in private and defended the arrests, issuing a statement in which it claimed it only acted in response to "calls from the public about lewd activity near... children" or "reports of public masturbation, sex and other lewd activity in a park where children are playing." According to EBRSO, the intention "was NEVER to target a certain segment of our population."
Baton Rouge Metro Councilman John Delgado, who has demanded EBRSO apologize to victims of the "despicable, offensive, hateful, bigoted" sting, was not convinced. Critics argue the EBRSO statement attempts to justify the arrests by using terms such as "lewd conduct" and "public masturbation" and by falsely suggesting that children were present during the arrests.
"The newspaper article makes it quite clear that nothing of the sort occurred in these 12 arrests," Delgado asserted. "These men were arrested even though they were innocent of any crime."
In the wake of Delgado's criticism and growing public outrage, EBRSO deleted its first statement and replaced it with the following:
The Sheriff's Office apologizes that the way these investigations were handled made it appear that we were targeting the gay community. That was not our intent. The Sheriff's Office also apologizes to anyone that was unintentionally harmed or offended by the actions of our investigations. While sections of La. R.S. 14:89, Crimes Against Nature, have not been removed from the Louisiana law codes, they have been deemed unenforceable and unconstitutional. The Sheriff's Office will not use these unconstitutional sections of the law in future cases. We are committed to working with all branches of our government, as well as the LGBT community, to find acceptable ways to keep our community safe.
Public reaction was a mixture of outrage and support for EBRSO.
"Sheriff Gautreaux should resign," commented local Christopher Cochrane on Facebook. "No matter how much backtracking and damage control that the department does now, [its] initial response... makes clear that the Sheriff does not feel that one of the most famous, well-known, landmark Supreme Court decisions of the last century applies to him and his deputies."
"Shame on you for your bigoted ways," Stephanie Antoniuk added.
But not everyone was opposed to EBRSO's illegal arrests.
"Don't be so PC (politically correct)," commented Bill Atkinson. "[We] have to clean up the parks and get that trash out of it."