Virginia's appeals court upholds oral sex statute
November 9, 2005

RICHMOND (AP) -- The Virginia Court of Appeals yesterday upheld the conviction of a Virginia
Beach man who police say solicited oral sex from an undercover officer in a department store
restroom.
   The court rejected defense arguments that a U.S. Supreme Court ruling striking down
anti-sodomy and similar state laws nullified a Virginia statute outlawing oral sex.
   "We're still considering whether or not to take an appeal," said Greg Nivens, an
Atlanta-based lawyer with Lambda Legal Defense and Education Fund, a homosexual rights group
representing Joel Singson.
   In a 20-page opinion, Judge Robert J. Humphreys dismissed suggestions that Virginia's
sodomy law violated Singson's constitutional rights and that a six-month sentence imposed upon
him last year constituted cruel and unusual punishment.
   Singson, 38, was convicted in 2003 after he approached a male officer in a public restroom
and asked if he could perform oral sex on the man in a handicapped stall. A court sentenced him
to three years, with all but six months suspended.
   Virginia Code 18.2-361 says any person who "carnally knows" a male or female's sexual
organs via mouth has committed a felony.
   Attorneys for Singson contended that Virginia's sodomy law was unconstitutional because it,
combined with related codes, restricted everything from private sexual acts to discussions of
such acts. For the latter reason, they argued, the law also violated protected speech.
   But Judge Humphreys said the law wasn't targeting speech.
   "Code 18.2-361 itself does not criminalize speech or expressive conduct. Rather, it only
prohibits sexual conduct," he wrote. "Solicitation of a sexual act is not communicative speech,
but rather, non-expressive conduct."
   The crux of Singson's argument, however, rested on the question of public and private
sexual acts and whether the U.S. Supreme Court's recent decision in Lawrence v. Texas made
Virginia laws surrounding those acts invalid.
   That 2003 ruling banished state statutes criminalizing homosexual sex as a violation of an
individual's constitutional right to sexual privacy.