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Better Late Than Never? Alabama Appeals Court Nixes Consensual Sodomy Conviction

Posted on: June 16th, 2014 by Art Leonard No Comments

In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state laws making it a crime for two men or two women to have consensual sex violate the 14th Amendment of the Constitution by impairing individual liberty without adequate justification. At the time there were many states, especially in the southeast, that continued to treat such conduct as a crime, and they did not rush to take these unconstitutional laws off the books. One holdout has been Alabama, which did not repeal its sexual misconduct statute, which punishes consenting adults for having gay sex.

On June 13, the Alabama Court of Criminal Appeals put an end to that, ruling in Williams v. State of Alabama, 2014 Ala. Crim. App. LEXIS 42, that the state must comply with the Lawrence precedent.

The defendant in this case, Dwayne Williams, was charged with sodomy in the first degree, a felony offense, after a complainant identified in the opinion as A.R. complained to police that Williams had forced him to have anal sex. According to the unsigned opinion by the appeals court, Williams was hanging around in the lobby of the Jameson Inn motel in Selma and evidently became sexually interested in A.R., the 23 year old reception clerk. Williams followed A.R. into the motel office and “pushed him into the bathroom in the office,” holding him by his throat and telling A.R. “to not say anything or scream and that if A.R. did, Williams would choke A.R. harder.” After locking the bathroom door, Williams told A.R. to pull Williams’ pants down and then to pull A.R.’s pants down, and Williams began groping A.R. Williams told A.R. to bend over and then entered him while biting him on the neck. “After Williams finished, he ‘told A.R. to open the door and see if anybody was in the lobby.’ After A.R. verified that no one was in the motel lobby, the men walked out of the bathroom and A.R. went to his desk. For the next 45 minutes Williams ‘hovered around’ A.R. and then returned to the lobby.”

After Williams left the hotel, A.R. texted a co-worker to come to the motel, and told her what Williams had done. The next day, A.R. also told his mother what had happened and “the police were notified.” A.R. went to the hospital for a sexual assault exam, and the police lab confirmed that rectal and genital swaps showed evidence of Williams’ DNA.

At trial, Williams presented character evidence and testified in his own defense, admitting the sexual act but stating that A.R., an adult, had consented. The prosecutor asked the judge during a “charge conference” to instruct the jury on both the sodomy count and “sexual misconduct” as a lesser-included offense. Williams objected, saying that this would “disregard Lawrence v. Texas,” but the judge granted the state’s request. Returning to the courtroom, the judge told the jury that if it believed Williams’ testimony that A.R. had consented, it could not convict Williams of first-degree sodomy, but that “consent is not a defense to prosecute under the charge of sexual misconduct.” Williams again objected on the record, citing Lawrence v. Texas. The jury then convicted him of sexual misconduct. Williams filed a post-trial motion, against arguing that he should have been acquitted and that the sexual misconduct law is unconstitutional under Lawrence v. Texas.

The Court of Criminal Appeals agreed with Williams. “To date,” it wrote, “no Alabama court has ruled on the constitutionality of [the sexual misconduct law] in light of the United States Supreme Court’s holding in Lawrence. Because ‘the only federal court whose decisions bind state courts is the United States Supreme Court’ Lawrence controls our decision.” The court also mentioned another unrelated case in which the 11th Circuit Court of Appeals had mentioned that the Alabama Attorney General had “specifically conceded” that the sexual misconduct law “is unconstitutional, in his words, ‘to the extent that it applies to private, legitimately consensual anal and oral sex between unmarried persons.” But somehow the word hadn’t gotten to the local prosecutor in Selma.

The state argued, however, that the court should not declare the statute unconstitutional, but rather should just strike as unconstitutional the sentence stating that consent was not a defense. Rejecting this request, the Criminal Appeals Court said that the court is limited to interpreting the law, and does not have the authority to amend it.

The state also asked for a chance to retry Williams, but the court concluded that this would violate the Constitution’s Double Jeopardy clause, which prohibits trying somebody twice for the same offense. Furthermore, changing the criminal statute and trying Williams under the changed statute would also, in the court’s view, offend the Constitution’s prohibits on ex post facto laws. The court quoted a 1985 Alabama Supreme Court ruling that stated, “in the case of judicial interpretation of statutes, due process of law prevents the retroactive application of a changed statute, just as legislative enactments cannot be retroactively applied.”

The court concluded that the circuit court erred in rejecting Williams’ post-verdict motion for acquittal. Since the jury had refused to convict on first-degree sodomy, the only conclusion was that it had decided the sex was consensual, and thus Williams conviction had to be vacated.

The remaining question is whether the Alabama legislature will now take the common sense approach recently taken by the Virginia legislature, which had rejected attempts to revise its sex crimes law in light of Lawrence for more than a decade, but finally did so earlier this year after the U.S. Court of Appeals for the 4th Circuit found the state’s sodomy law unconstitutional and the Supreme Court refused to review the decision.