This week the Alabama Court of Criminal Appeals provided us two interpretations of Lawrence v. Texas in court rulings. This is a sodomy case from Baldwin County, Alabama, Wesson v. Alabama. Sometimes it is interesting for a court to be presented two cases with same statutes and reach completely different conclusions.

As I have said many times, the law depends upon the facts and the facts will interpret the law. Although the Court upheld this conviction, I believe that this statue will be back before the court again many times in the near future. In the present case, the Defendant, Wesson, was indicted for first-degree sodomy, for engaging in deviate sexual intercourse with a woman by forcible compulsion, and for sexual misconduct.

Wesson filed a motion to dismiss the count charging him with sexual misconduct. During the hearing to dismiss the count of sexual misconduct, Wesson argued that under the holding of the Supreme Court of the United States in Lawrence v. Texas, 539 U.S. 558 (2003), sexual misconduct as defined in Ala. Code 1975, § 13A-6-65(a)(3), is unconstitutional as applied to him. The Defendant did not argue that the statute was unconstitutional in its face. At the hearing, Wesson did not present any evidence indicating that his conduct was protected under the Supreme Court’s holding in Lawrence.

The trial court denied his motion. Wesson pleaded guilty to sexual misconduct, but reserved the right to appeal the trial court’s denial of his motion to dismiss the sexual misconduct charge. This case was upheld on appeal. The Court rejected any argument that the subject statute was unconstitutional because that argument was not preserved for appellate review. In Lawrence, the Court struck down a Texas statute that provided that a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. Section 13A-6-65(a)(3) provides that a person commits the crime of sexual misconduct if he or she engages in deviate sexual intercourse.

“Deviate sexual intercourse” is defined as “any act of sexual gratification between persons not married to each other involving the sex organs of another and the mouth or anus of another.” Ala. Code, 1975, § 13A-6-60(2). Lawrence v. Texas only held statutory prohibitions against consensual sodomy to be unconstitutional. Section 13A-6-65(a)(3) criminalizes not only consensual deviate sexual intercourse but also criminalizes other circumstances in which a person engages in deviate sexual intercourse such as when the act results from fraud, artifice, or extortion. Wesson had to show that this code section was unconstitutional as applied to his conduct under the facts presented.

That is, he would have to show that he engaged in consensual deviate sexual intercourse. “The record in this case fails to show that Wesson’s conduct falls within the conduct protected under Lawrence. There was not any evidence in the record indicating that Wesson engaged in consensual deviate sexual intercourse. Accordingly, the judgment of the trial court is due to be affirmed. If you are facing a charge of sexual misconduct, seek a criminal lawyer to guide you through the case.

As Always, you may contact me to discuss any case posted here.