Tuesday, August 6, 2002

A story published today by the St. Louis Post-Dispatch reports that Missouri's ban on same-sex sexual relationship, already thrown out in the western part of the state by a Kansas City appeals court, might face another challenge from three of the men charged after a raid on a Jefferson County sex shop.

An attorney representing the men said he would file a motion this week to dismiss the cases on the grounds that the Missouri statute no longer prohibits consensual sex between same-sex partners.

An amendment added to Missouri's sexual misconduct law prohibits a form of sexual touching "without that person's consent." In 1999, the court of appeals for Missouri's western district ruled that the amendment's consent clause applied to every offense in the statute, including sex between same-sex partners.

The Kansas City decision isn't binding in Missouri's eastern and southern districts because the Missouri Supreme Court has not heard this case.

Richard Sindel, who is defending the men on behalf of the American Civil Liberties Union, said that if the motion to dismiss is thrown out, "This case will almost certainly go before the state Supreme Court."

Jefferson County Prosecutor Bob Wilkins says he believes the law is wrongheaded and possibly unconstitutional, but he added that it clearly forbids gay sex even if it's consensual. Although he disapproves of the statute, Wilkins said he was applying it because, "It is the only weapon I have to protect my community from what was going on at this establishment."

Sindel said that if charges were not dropped, he would argue that the law violates the men's constitutional rights to equal protection.

Denise Lieberman, legal director of the ACLU of Eastern Missouri, said that if the law is interpreted to prohibit consensual gay sex, it is unconstitutional.

"There were heterosexuals engaged in sexual activity and there were same-sex couples involved in the very same activity, but only the same-sex couples were charged," Lieberman said. "If you're going to have a law, it should be applied equally."

Texas, Oklahoma and Kansas are the only other states that outlaw sex between same-sex partners, although other states prohibit specific sex acts. In March, an Arkansas judge ruled that the state's ban on gay sex acts was unconstitutional, saying it unfairly singled out homosexuals for prosecution.