Appeals court halts challenge of law

A federal appeals court has declined to allow an American Fork man to go forward with his challenge of a state law banning sodomy, finding the man is under no threat of prosecution.

The 10th U.S. Circuit Court of Appeals this week upheld U.S. District Judge Dale Kimball's January 2003 dismissal of the suit.

Kimball initially found, and the appeals court agreed, that the man — identified in court documents as D.L.S. — failed to show that he was likely to be criminally charged if he continued to engage in consensual sodomy.

"It is undisputed that D.L.S. has never been charged with sodomy, prosecuted under the statute or directly threatened with prosecution," the appeals court said.

The court also noted the odds of the man being charged are diminished by evidence that the Utah County Attorney's Office has not filed such charges against anyone in at least 17 years.

A 2003 U.S. Supreme Court decision striking down similar anti-sodomy laws in Texas further reduces the man's likelihood of facing charges, the appeals court said.

Utah's law on sodomy does not take gender into account. The violation is class B misdemeanor, punishable by up to six months in prison and a $1,000 fine.

Attorney Brian Barnard, who filed the lawsuit on behalf of D.L.S., has a similar challenge to the law pending in state court. In addition to the sodomy statute, the case challenges a state fornication law forbidding premarital sex. That case was also initially dismissed for lack of standing, but Barnard has appealed that decision to the Utah Court of Appeals.