June 17, 2003
ST. LOUIS — It was just a matter of hours following Thursday’s U.S. Supreme Court ruling striking down the Texas Sodomy Law before Missourians began seeing some impact of the landmark decision in the “Show Me” state.
Jefferson County Prosecuting Attorney Bob Wilkins has dropped some charges against six men arrested last year in a raid at what was then called Award Video, an adult video store in Jefferson County near Highway 30. The men have been accused of having sex, sometimes for money, in a small room at the establishment.
Wilkins’ decision comes on the heels of the Supreme Court ruling that private sodomy among homosexuals is protected under the U.S. Constitution. Legal experts agree that the ruling invalidates anti-sodomy laws in 13 states, including Missouri’s sexual misconduct law, a misdemeanor that carries a maximum penalty for first-time offenders of up to one year in jail and a $1,000 fine.
Wilkins said he will move forward with what he calls "alternative charges" of sexual misconduct, filed last December, against the same six men as well as a woman who was also in the theater. Those charges rely on a law prohibiting two people from having sexual relations in front of a third person if the activity could "affront or alarm" that person.
Wilkins acknowledged that "it’s a much harder case to make," since the defendants willingly paid admission to enter a sexually oriented business.
He said convictions under the Missouri anti-sodomy law could have helped authorities shut down the video store if it didn’t change its policies.
"My goal was to stop sexual contact at this establishment. I never cared whether the contact was between homosexuals or heterosexuals," Wilkins said. "I personally think the Supreme Court did the right thing. But up until they reversed their own 1986 opinion, the law forbid (homosexual) contact. As prosecutors, we are charged with enforcing the law."
In March last year, undercover police raided Award Video after receiving a tip that homosexuals were having sex at the establishment. Authorities said there was no evidence of traditional cash-for-sex prostitution at the store but that some sex acts were offered in exchange for beer and alcohol.
Six men, ranging in age from 21 to 63, were charged with first-degree sexual misconduct. Two of the men live in House Springs. The others live in St. Louis, Florissant, O’Fallon, and Sullivan.
Denise Lieberman, legal director for the American Civil Liberties Union of Eastern Missouri, said the group would continue to represent the men and the woman arrested in the raid. She said the store was a private establishment and police violated customers’ privacy.
The Supreme Court ruling "has the effect of invalidating Missouri’s law," Lieberman said. "This was a pretty sweeping Supreme Court ruling that recognized that all people have a fundamental right to intimate association that cannot be infringed by the state,” adding that it might "open the door to a number of legal challenges" affecting gays and lesbians.
Ken Jones, an attorney who publishes Missouri Lawyers Weekly, said, "In my opinion, the U.S. Supreme Court has overturned the Missouri statute, which singles out homosexuals engaging in consensual sexual acts."
Pro-family groups in Missouri are concerned about the Supreme Court ruling and believe that it invites court challenges against the prohibition of homosexual marriage, polygamy, incest and bestiality.
Kerry Messer, president of Missouri Family Network, has led lobbying efforts to retain the state law against gay sex. He said the prohibition was a matter of "not only values, but public health" because, he says, gay sex contributes to a greater number of sexually transmitted diseases.
Jeff Wunrow is the executive director of Privacy Rights for Missourians, a group formed to overturn the Missouri ban on gay sex. He said the organization would now focus on extending legal anti-discrimination protection to Missouri’s gays and lesbians. He said the ruling Thursday will make that task easier.
"Legislators tell me they can’t vote for civil rights (protection) for gays and lesbians as long as the sexual misconduct law makes sex between gays and lesbians a crime," Wunrow said. "Now, I intend to march in their offices and tell them to vote for it."
As recently as 1960, every state had an anti-sodomy law. Now only 13 remain. Lawyers said Thursday’s Supreme Court ruling invalidates all of the laws – including Missouri’s.
Four prohibit oral and anal sex between same-sex couples: Missouri, Texas, Kansas and Oklahoma. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. (The Associated Press and St. Louis Post-Dispatch contributed to this story.)