Monday, December 6, 2010

That Sneaky Sodomy Law

SB 152 by Joan Huffman has the laudable goal of protecting victims of sexual abuse, but an arcane and unenforceable law still on the books in Texas may turn her commendable intentions into a McCarthian nightmare for queer Texans.

SB 152 would allow Texas Judges to admit testimony and evidence of previous sex crimes by defendants accused of sex crimes. The Bill amends a section of code which lists 5 sets of offenses that would be admissible including offenses under Penal Code Chapter 21. Unfortunately for LGBT Texans that Chapter includes this:
"Sec. 21.06. HOMOSEXUAL CONDUCT. (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."
In 2004 the Supreme Court of the United States declared Penal Code 21.06 unconstitutional in Lawrence v. Texas, but the law has never been removed from the books.

Of course any good judge would not permit evidence of "Homosexual Conduct" to be introduced because they would know that any good lawyer would immediately recognize grounds for appeal since the code is unconstitutional. Unfortunately not every defendant gets a good judge, and many defendants do not get a good lawyer.

One need only to look at the rhetoric around California's prop 8 to know that many on the far right already consider LGBT people suspect of child abuse. SB 152 would create an official vehicle in statute to introduce that bias into the courtroom.

I fear that if this bill becomes law someone in a small-town west Texas courtroom will face a line of questioning that begins "are you now, or have you ever been a practicing homosexual?"

Some might argue that anything that can be done to get sex offenders off the streets is a good thing. It's important to recognize, however, that innocent people are, from time to time, brought to trial for crimes they did not commit. One of the foundations of American jurisprudence is that we assume that anyone who is charged with a crime is innocent until proven otherwise. We must therefore also assume that the evidence allowed in court by this bill, if passed, would be used against an innocent person.

The solution of course is simple: remove Penal Code 21.06 from the books. Why do we even still have an unconstitutional law on the books? Because very few lawmakers want to face the charge of being "pro-sodomy" in their next election, and the code can't be removed without approval of the State Legislature.

Last session Rep. Garnet Coleman introduced a bill to repeal Penal Code 21.06 (HB 3026 81R). It didn't even receive a hearing.

There are several other laws already on the books that refer back to Penal Code 21.06, so it's not like SB 152 would create a unique situation, but every time a reference back to the code is created in statute this bit of law becomes more firmly entrenched in the statute. What's more this bill would have been an excellent opportunity to excise the "Homosexual Conduct" law from the books since it was already dealing with that section of code. It's unfortunate that Sen. Huffman lacked the courage, moral fortitude, or knowledge to take advantage of that opportunity.

Until lawmakers get past their cowardice and take the simple, common sense step of removing this unconstitutional law from the books every attempt to strengthen Texas's Sex Crime laws will put honest, hardworking LGBT Texans at risk.

1 comment:

  1. This bill has been filed again by joan huffman for the 83 lege session. It is this session SB 12. According to the Texas tribune huffman will fight hard this session to get this passed. Our group TX voices opposes this bill with all we have. Defense lawyers had better step up and speak out against this one.