*This post contains more “mature” content than my usual posts, so please be aware before reading on*
Williams v. State of Alabama
In two cases released on July 2, 2015, we see the Alabama Court of Criminal Appeals finally have a chance to apply the United States Supreme Court’s holding in Lawrence v. Texas to a challenge of Alabama’s sexual misconduct statute, sec. 13A-6-65.
In Lawrence, the Supreme Court ruled that Texas’ anti-sodomy statute which only applied to homosexual conduct was unconstitutional under the Due Process Clause of the Fourteenth Amendment. In Williams, the Court of Criminal Appeals explained:
“Section 13A-6-65(a)(3) provides: ‘A person commits the crime of sexual misconduct if … [h]e or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64[, Ala. Code 1975]. Consent is no defense to a prosecution under this subdivision.’ The commentary to that statute notes that the specific subdivision ‘was changed by the legislature to make all homosexual conduct criminal, and consent is no defense.’ See Commentary to § 13A-6-65, Ala. Code 1975. Section 13A-6-60(2), Ala. Code 1975, defines ‘deviate sexual intercourse’ as ‘[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.’
Williams – Conviction Reversed
Williams was alleged to have sodomized another man against his will. He was prosecuted for first degree sodomy. At trial, Williams testified in his own defense and explained to the jury that he and the other man had engaged in consensual conduct.
While the parties discussed how the jury should be instructed, the Court considered whether a sexual misconduct instruction should be given as a lesser-included offense of first-degree sodomy. Williams objected, arguing that in his case, a sexual misconduct instruction would allow the jury to convict him of consensual sodomy. Williams argued this conviction would be unconstitutional under Lawrence. The judge overruled the objection and Williams was convicted of sexual misconduct.
The Court of Criminal Appeals reversed and rendered Williams’ conviction. The Court concluded that the sexual misconduct statute was unconstitutional under Lawrence as applied to Williams’ consensual conduct.
Wesson – Conviction Affirmed
Wesson was charged with engaging in acts of sodomy with a woman against her will. He was indicted on the charge of first-degree sodomy and sexual misconduct. Wesson pleaded guilty to the sexual misconduct charge and the sodomy charge was dismissed. He, like Williams, argued the sexual misconduct statue was unconstitutional as applied to him and appealed the constitutionality of his conviction to the Court of Criminal Appeals.
The Court of Criminal Appeals affirmed. First, the Court rejected Wesson’s argument that the sexual misconduct statute was unconstitutional on it’s face. The Court concluded that Wesson didn’t raise that argument before the trial court, so they weren’t going to consider it on appeal. Next, the Court concluded that Wesson’s as-applied challenge under Lawrence was doomed to fail because he could not demonstrate that his conduct fell within the bounds of protected conduct described by Lawrence — namely, he couldn’t prove that the sex acts that occurred were consensual. Because he could not, Lawrence would not provide him any relief.
Consent is Now a Defense After 12 years, an Alabama court has finally recognized that Lawrence prohibits the criminalization of consensual conduct covered by sec. 13A-6-65(a)(3).