North Carolina Clings to Sodomy Law

Court voids consensual oral sex conviction but refuses to invalidate law

The North Carolina Court of Appeals, an intermediate appeals court, ruled on August 16 that Greg Whiteley’s conviction for engaging in oral sex with a woman must be set aside because of the U.S. Supreme Court’s decision in Lawrence v. Texas, but that the 2003 high court ruling does not require the outright invalidation of the state’s “crime against nature” criminal statute.

Whiteley was charged with three sexual offenses, including a “crime against nature,” for attempting intercourse and performing oral sex on a woman he brought home, together with several other people, from a party. The jury heard conflicting evidence about whether the woman was drunk or otherwise impaired. Pharmacological testing showed that she had ingested medication that could cause loss of consciousness or memory, but she testified that she did not drink at the party.

Other witnesses indicated that the woman, unnamed in the opinion, had walked into the defendant’s bedroom on her own steam. She disclaimed any memory of what happened in the bedroom, but the police became involved when she later experienced discomfort and sought medical attention that revealed injury in her vaginal area.

These events occurred in May 2002, more than a year before Lawrence, which declared unconstitutional the Texas Homosexual Sodomy Law. The Supreme Court found that the right of consenting adults to engage in oral or anal sex in private was part of the liberty protected by the 14th Amendment’s due process clause.

Whiteley was not prosecuted until after the Lawrence ruling and was charged with first degree rape, first degree sexual offense, and a crime against nature. The defendant moved to dismiss all the charges against him, contending that the sexual acts, which he did not deny, had been consensual and thus not unlawful. The trial judge denied his motion, but reduced the first two charges to second degree rape and second degree sexual offense.

The judge also rejected Whiteley’s demand to instruct the jury that he could only be convicted under the crime against nature statute if it found lack of consent. The judge instructed the jury that consent was an issue on the rape and sexual offense charges, but not on the crime against nature charge, which was a correct reading of the statutory language. Whiteley was convicted only on the crime against nature charge, and he appealed.

Writing for the appeals court, Judge Robert Hunter rejected Whiteley’s argument that the crime against nature statute, which withstood numerous earlier constitutional challenges, was invalid as written. Whiteley had argued that after Lawrence a state could not single out oral sex and treat it separately from other kinds of sex, but Hunter focused on language in Justice Anthony Kennedy’s opinion that made clear that the Supreme Court was striking down only the criminalization of private, consensual, non-commercial sex between adults. As a result, Hunter found, the North Carolina law was not on its face invalid.

However, because Whitely was acquitted on the other counts and convicted only on the sodomy count, and because the trial judge did not instruct the jury on the issue of consent, the appeals court found the conviction must be overturned based on Lawrence. Since Whiteley had conceded that he committed the sexual acts, the jury must have acquitted him on the first two charges because it believed those acts were consensual, according to the court.

What the Court of Appeals failed to address, however, was how many more North Carolinians on are going to be erroneously prosecuted for consensual sex under a sodomy statute it has insisted can continue to stand.