|Government bedroom intrusion|
By Mark Kernes
CHEROKEE COUNTY - Way back in 1997, _____ and another guy and two women were getting it on in a hotel room, though not the way you might think: The consensual sex was between _____ and the other guy—no word on what the two women were doing—and somehow, the local cops got wind of the gay hookup and busted _____ for violating Georgia's sodomy statute. This being 1997, the law under which _____ was charged was the one upheld by the U.S. Supreme Court's 1986 decision in Bowers v. Hardwick, which had specifically affirmed Georgia's statute.
_____ pled guilty to the charge and got probation, but he managed to violate that and was convicted of the violation and sentenced in January, 1999 to a prison term—illegally, as it turned out, because the Georgia Supreme Court had ruled that, despite Bowers, Georgia's anti-sodomy statute was unconstitutional in circumstances where the alleged violation was part of "private, adult consensual activity"—but the trial court ignored that, and _____'s attorney was apparently unaware of it, so _____ wound up serving several years behind bars.
But part of _____'s sentence was that after his release he was required to register as a sex offender, and always report his address to law enforcement officials in whatever locale he was living at the time.
That worked out fine for a few years, but in 2009, _____ moved into his mother's home to take care of her while she was being treated for cancer, and he failed to provide the local police with his new address. That little oopsie got him convicted in May, 2009 of violating the sex offender registration laws, and a judge sentenced him to 30 years in prison, though he'd only have to spend two of them behind bars, but be on probation for the rest.
Trouble is, by 2009, Georgia's sodomy statute had been voided by the U.S. Supreme Court's decision in Lawrence v. Texas, which overturned Bowers, so _____ was put in the interesting position of being sentenced for violating a statute whose jurisdiction he only came under because he'd committed an act that, by 2009, was no longer considered illegal. And once again, _____'s attorney failed to argue that the case against _____ should be dismissed because his original conviction had been found to be unconstitutional.
Fortunately, _____ got a new attorney, who argued that _____ was only convicted because his previous counsel had been ineffective, and therefore, his sentence should be overturned. The trial court denied the new trial motion, and the Georgia Court of Appeals upheld that denial, claiming incredibly that _____'s original liaison in the hotel room was not "private," and therefore, Lawrence didn't apply to his case.
Even as the Court of Appeals was considering _____'s case, the defendant sued in Pickens County Superior Court to get his original sodomy conviction vacated, arguing that his actions were no longer considered illegal under any law—but though a local judge agreed with _____'s argument and vacated his conviction, the Georgia Court of Appeals overturned that ruling because of some alleged "procedural irregularities."
Finally, after the Court of Appeals affirmed his sentence for offender registration violation, _____'s attorney took the case to the federal district court, and on December 9, U.S. District Judge Amy Totenberg ruled that _____, who'd already served his two years in prison, need not continue to be subject to the 28-year probation to which he'd been sentenced.
"The state cannot give legal effect to a conviction under an unconstitutional criminal statute," Totenberg wrote. "Convicting _____ for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to 'state-sponsored condemnation' of constitutionally protected behavior," citing both Lawrence and the more recent MacDonald v. Moose, which struck down a similar Virginia anti-sodomy statute which was still on the books, thanks to that state's religio-conservative attorney general Ken Cucinelli, who just lost his bid for the governorship.
Judge Totenberg also denied the state's argument that because _____ had pled guilty to the sodomy, he was barred from challenging the offender registration conviction. In her ruling, the judge noted that it would violate "fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized." And as for the Court of Appeals' claim that _____'s conduct was not "private" under the law, Judge Totenberg took them to task for failing to apply their own 2000 ruling in Mauk v. State, where they stated that "a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance." That ruling had overturned an earlier standard that held that if more than two people were present for the sexual act, that automatically made it not private.
While it's unclear whether Georgia will appeal Judge Totenberg's ruling, the decision should give heart to other sex offenders whose only "crimes" were that they had sex with someone of their own gender.