Georgia on My Mind

In 1986, the U.S. Supreme Court in Bowers v. Hardwick refused to strike down a Georgia law criminalizing sodomy. While the majority opinion stated that there was no constitutional right to engage in homosexual sodomy, the law that it upheld forbids all sodomy. At the time, some argued that the decision was of little consequence because sodomy laws are rarely enforced.

Since Hardwick, however, some prosecutors seem to be more willing to prosecute sodomy cases—and defendants find themselves without protection. Ironically, some of the first to suffer prosecution are heterosexuals.

James Moseley has sat in a Georgia prison since February 1988 and will likely remain there until February 1990. He was convicted of engaging in oral sex with his ex-wife. (Legally, sodomy refers to either anal or oral sex.)

During a bitter divorce and custody battle, his wife charged him with rape. At the trial, he admitted that he had engaged in oral sex with her but said it was completely consensual. The jury apparently believed Moseley, acquitting him of rape. But, under instructions from the judge, they convicted him of consensual sodomy—a felony in Georgia. He was sentenced to two years in prison and three years probation. Judd Herndon, an Atlanta attorney now advising Moseley, says he knows of at least two other heterosexuals recently convicted under Georgia's sodomy law.

Under strikingly similar circumstances, Maryland last year sentenced Adam Schochet to five years in prison for violating its 1916 sodomy law. A woman had accused Schochet of forcing her to perform fellatio. A jury acquitted Schochet of rape but found him guilty of sodomy. Schochet's conviction was upheld by an appellate court, which cited Hardwick. The case is on appeal.

Sodomy is illegal in 24 states and the District of Columbia. Of these, 8 states recognize only homosexual sodomy as a crime, 14 have a blanket prohibition, and Alabama and Utah allow sodomy only between married partners.

The penalties can be severe. Rhode Island, which has a blanket prohibition, demands a prison sentence of not less than 7 years and no more than 20. In Montana, which outlaws only homosexual sodomy, a conviction can bring a 10-year sentence and/or a $50,000 fine.