ABOVE: Washington Blade file photo by Michael Key.
In a little-noticed development, the Maryland General Assembly agreed to requests by Republican lawmakers to delete one of the state’s two separate sodomy laws from a sodomy law repeal bill that it approved in March of 2020, leading most LGBTQ activists into incorrectly believing the full sodomy law had been repealed.
According to Maryland House of Delegates member David Moon (D-Montgomery County), who introduced the repeal bill in the state House, which approved the bill on Feb. 20, 2020, the Democratic-controlled Senate Judicial Proceedings Committee voted unanimously to pass an amendment that deleted from the bill a provision calling for the repeal of Maryland’s Criminal Code Section 3-322, which is known as the Unnatural or Perverted Sexual Practice Act.
The act criminalizes oral sex in all possible circumstances, including between consenting adults.
It states, “A person may not: take the sexual organ of another or of an animal in the person’s mouth; place the person’s sexual organ in the mouth of another or of an animal; or commit another unnatural or perverted sexual practice with another or with an animal.”
The offense of violating the act is listed as a misdemeanor but includes a penalty of up to 10 years in prison or a fine not exceeding $1,000 or both upon conviction of the offense.
During its deliberations in March 2020, the Senate Judicial Proceedings Committee, while deleting the Unnatural or Perverted Sexual Practice Act from the repeal bill, left in place the provision in the bill that called for repealing Maryland’s criminal Code Section 3-321, which criminalizes “sodomy” between consenting adults as a felony with a penalty of up to 10 years in prison upon conviction.
Supporters of the original repeal bill say the two statutes each criminalize same-sex sexual relations between consenting adults and the repeal of one of them and not the other leaves on the books a statute that stigmatizes LGBTQ people even if the law is not enforced.
Supporters of the original bill also pointed out that separate, existing Maryland laws strictly prohibit acts of cruelty to animals as well as any non-consensual sexual acts, including same-sex rape and sex between adults and juveniles. This meant that repealing the Unnatural or Perverted Sexual Practice Act would not prevent anyone engaging in sexual assault, sex with minors, or abuse of animals from being arrested and prosecuted to the full extent of the law.
Among those who supported that assessment in testimony before the committee was Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault.
But despite these assurances, which were further confirmed at the Judicial Proceedings Committee hearing by Maryland’s Assistant Attorney General Carrie J. Williams, Republican members of the committee, including Sen. Michael Hough (R-Frederick & Carroll Counties) raised strong objections to repealing any existing statute that might be used to prosecute someone engaging in sexual assault or pedophilia.
Sources familiar with the committee have speculated that Hough’s strong hints that he would hold anyone who voted for the full repeal responsible for an inability to prosecute sexual assault and sex with minors as well as incidents of cruelty to animals may have “spooked” the Democrats on the committee to back the amendment.
Sen. William Smith (D-Montgomery County), who chairs the committee; Sen. Jeff Waldstreicher (D-Montgomery County), the committee’s vice chair; and committee members Sen. Shelly Hettleman (D-Baltimore County) and Sen. Susan Lee (D-Montgomery County) did not respond to requests by the Blade for comment on why they voted for the amendment to remove the Unnatural and Perverted Sexual Practice Act from the repeal bill.
Each of them has been supportive on LGBTQ rights on other legislation that has come before the Maryland General Assembly. Lee, for example, introduced a sodomy law repeal bill several years earlier that failed to pass.
The other members of the committee that voted to remove the Unnatural or Perverted Sexual Practice Act from the repeal bill included Sens. Ronald Young (D-Frederick County), Charles Sydnor (D-Baltimore City & Baltimore County), Jill Carter (D-Baltimore City), Robert Cassilly (R-Harford County), Chris West (R-Baltimore County), Justin Ready (R-Carroll County), and Michael Hough (R-Frederick & Carroll Counties).
Moon said the full Maryland Senate quickly approved the committee’s amended bill that repealed the sodomy law but did not repeal the Unnatural or Perverted Sexual Practice Act. He noted the committee’s approval by a unanimous vote came just as the Maryland General Assembly’s 2020 legislative session was coming to an end one month earlier than usual due to restrictions related to the COVID pandemic.
With just one day left before the legislative session was to adjourn for the year on March 18, 2020, Moon said the House of Delegates, which had passed the full repeal version of the bill by a vote of 133 to 5 on Feb. 20, 2020, had a choice of accepting the Senate version or letting the bill die. He said House members decided to approve the Senate bill, with the vote taking place March 18.
“Basically, that change was made in the last day of the pandemic legislative session,” Moon told the Blade. “And so, it was a take it or leave it situation. So, we went ahead and struck the sodomy part out, and here we are,” he said.
He noted that the truncated legislative session did not provide time for the Senate version of the bill to come before a House-Senate conference committee, where supporters of the original bill could have pushed for rejecting the Senate version and sought approval of the House version.
“The next year the Unnatural or Perverted Sex Practice law is being used exactly in the manner we were trying to stop it from being used,” he said, referring to the May 20 raid on Bush River Books & Video store, in which four of the arrested men were charged with Perverted Sexual Practice.
Moon said he plans to introduce another repeal bill at the start of the General Assembly’s legislative session in January 2022 calling for the full repeal of the Unnatural or Perverted Sexual Practice Act. Supporters of Moon’s original bill in 2020, including the Maryland LGBTQ advocacy group Free State Justice, say they will push hard for passage of Moon’s bill next year.
The 2003 U.S. Supreme Court ruling in Lawrence v. Texas, which declared state sodomy laws unconstitutional, and other court rulings impacting Maryland made the two Maryland sodomy statutes theoretically unenforceable for consenting adults. But attorneys familiar with the two statutes have said police have made arrests and prosecutors sometimes have attempted to prosecute mostly men, including gay men, charged under the laws in the years following the court rulings.
The most recent known arrests took place on May 20 of this year, when Harford County, Md., Sheriff’s deputies arrested nine men during the raid on the adult Bush River Books & Video store in the town of Abingdon. Four of the men were charged with “Perverted Sexual Practice.” The store is located 25 miles north of Baltimore.
One of the men charged with Unnatural or Perverted Sexual Practice was also charged with indecent exposure. Another four were charged with indecent exposure and one of the men was charged with solicitation of prostitution.
A friend of one of the men charged with indecent exposure told the Blade his friend was with another adult male inside an enclosed video room with a locked door when Sheriff’s Office deputies opened the door with a key obtained from the store and placed the two men in handcuffs as they were arrested.
The friend and others familiar with the arrests said the arrested men spent the night in jail before they were released in the morning and appeared in court. Several of the cases are scheduled for trial on Aug. 2 in Harford County District Court.
Greg Nevins, an attorney who serves as senior counsel for the national LGBTQ litigation group Lambda Legal, said lower court rulings that apply to Maryland and other states, in addition to the U.S. Supreme Court’s Lawrence decision overturning state sodomy laws, have left it largely up to individual trial court judges to interpret these rulings to determine whether consensual sexual activity under sodomy or indecent exposure laws took place in a “private” or “public” setting.
Most of the court rulings declaring sodomy laws unconstitutional have limited those rulings to consensual, non-commercial sexual activity conducted in a private setting.
But according to Nevin, at least one ruling by the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, had the effect of making the Maryland Unnatural and Perverted Sexual Practice statute unenforceable for consenting adults regardless of whether alleged sexual activity takes place in a private or public place.
Nevin and other attorneys have said reports that some of the arrests at the Bush River Books & Video store in Harford County involving Sheriff’s Deputies opening locked private video rooms, where men allegedly were engaging in sexual activity, should be considered private spaces like a rented hotel room.
The owner or a representative of Bush River Books & Video store has not responded to requests by the Blade for comment.
