Appeals court overturns Alabama's gay-sex ban

MONTGOMERY, Ala. — Civil rights organizations in Alabama are cheering a state appeals court ruling that declared part of a state sexual misconduct law as unconstitutional. Under the statute, consensual oral and anal sex was banned in what the court determined was an act aimed at criminalizing homosexual activities. The portion of the law cited in the Alabama Court of Criminal Appeals ruling includes: “Consent is no defense to a prosecution under this subdivision.” The ruling was unanimous in the case of Dewayne Williams vs. State of Alabama. Williams, a Dallas County, Ala., man, who, although was not convicted in 2010 of first-degree sodomy, was convicted of the “lesser-included offense” of sexual misconduct, according to the ruling. Williams acknowledged he had taken part in the sodomy but argued it was consensual, the ruling states. 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. Susan Watson, executive director of the American Civil Liberties Union of Alabama, applauded the ruling. “Aiming to ban consensual sex is flat out wrong,” she said Saturday. “A person’s sexual orientation shouldn’t matter. Consensual sex is consensual sex.”

Ben Cooper, chairman for Equality Alabama, also lauded the ruling and added the law was “settled years ago” under Lawrence v. Texas, a case the Alabama court referenced in its decision. In the 2003 case, the crime for two persons of the same sex to engage in certain intimate sexual conduct was determined to violate the due process clause of the 14th Amendment.

“Each and every person, no matter their sexual orientation or gender identity, is entitled to equal protection under the law,” Cooper said in a statement. “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 through the continued elimination of unconstitutional provisions in our state’s constitution that violate privacy and equal protections.”

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

The state of Alabama also was denied its request to remove the language on consent from the law and remand Williams’ case for a new trial. The Alabama appeals court explained in its ruling that a remand of the case would violate the double jeopardy clauses of the Fifth Amendment to the U.S. Constitution and the Alabama Constitution.

Alabama Attorney General Luther Strange’s office did not respond to requests for comment.

Appeals court overturns Alabama's gay-sex ban