Ala. Gay-Sex Ban Struck Down by Court - FindLaw Blotter
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Ala. Gay-Sex Ban Struck Down by Court

An Alabama law that effectively acted as a gay-sex ban has been struck down by a state appeals court.

Responding to a criminal appeal by Dewayne Williams, a man who was charged with sexual misconduct for allegedly having consensual sex with another man, the Alabama Court of Criminal Appeals struck down the statute and threw out Williams' conviction, reports USA Today.

Alabama is one of a dozen states with gay-sex bans still on the books. So why did the court rule against the law?

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Lawrence and Gay-Sex Bans

Over a decade ago, the U.S. Supreme Court struck down a sodomy ban in Texas which criminalized consensual sex between two persons of the same gender. The Court's decision in Lawrence v. Texas essentially decriminalized consensual gay sex nationwide -- although strangely, there are a few states where the conduct is still illegal according to the letter of the law.

Alabama is one of those places -- or at least it was, before the Alabama appellate court's ruling in Dewayne Williams v. State of Alabama. The law in question was a prohibition on "sexual misconduct," which included engaging in "deviate sexual intercourse" with another person, even with consent. "Deviate sexual intercourse" is defined in the way that sodomy is: as any sexual act between unmarried persons involving sex organs and the mouth or anus.

The Alabama Court of Criminal Appeals astutely noted that in the legislative notes of the sexual misconduct law, the wording was changed to make all homosexual conduct criminal, even with consent. This is contrary to the U.S. Supreme Court's ruling in Lawrence, which dealt with a statute very similar to this one.

Even if the statute can be said to apply to all persons, not just gays, federal courts have consistently struck down broad "crimes against nature" statutes under Lawrence.

Why Not Change the Law?

Prosecutors argued that the Alabama appellate court could have just struck down the part of the law which denied consent as a defense to sexual misconduct. Part of the twist in Williams' case was an allegation that Williams forced himself on his sexual partner without consent. Rape is still illegal in all 50 states, but Williams was convicted under a law that disregards the consent defense altogether.

Since the court could not act as a legislature and amend the law, it simply struck down the law and acquitted Williams. It is now up to Alabama lawmakers to decide what parts of the gay-sex ban, if any, need to be replaced.

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