Court takes on Utah sodomy law

Should Utah's sodomy statute remain on the books in spite of a recent U.S. Supreme Court ruling deeming such laws unconstitutional?

The question was put before the Utah Court of Appeals on Monday.

"This is not a hypothetical situation," attorney Brian Barnard told the court, noting the recent sodomy charge filed against a Tooele High School baseball player in Washington County.

He argued that the state's sodomy and fornication statutes amount to "dictating morals" and have no place on the books. "It's not educating people, it's intimidating people," Barnard said.

However, an assistant attorney general argued that Barnard's client can't show that he has been harmed, or prosecuted, under a law that is rarely used.

Barnard is representing a Utah man who admits to having consensual contact of a "heterosexual nature" outside of marriage, in violation of Utah's sodomy law. The man, only listed as D. Berg, says he fears prosecution for his actions under a law that has been ruled unconstitutional.

Deputy Attorney General Jerrold Jensen countered that the two statutes are rarely enforced in Utah and that the case lacked any controversy or public interest. "If having (sodomy) (in private) is of great public interest, then the court should take the case," Jensen said.

However, one appellate justice questioned the state's apparent "inconsistency" on the issue.

Judge James Z. Davis asked why on one hand the state would deem the laws unenforceable and on the other fight Barnard on his efforts to have the laws removed. "What is the interest of the state in resisting Mr. Barnard's challenges?" Davis queried. Jensen replied that he could not speak for every prosecutor in the state but said he saw a difference between what he saw as "private and consensual conduct" and more "egregious" acts in which the sodomy law might prove useful.

Barnard said Utah already has other laws that deal with sexual conduct with minors, but that having a law criminalizing sexual conduct between two consenting adults is not constitutional.

Utah Attorney General Mark Shurtleff has already indicated that he would not prosecute anyone under the sodomy statute, nor would he encourage any prosecutor in Utah to do so. However, Shurtleff's position is that this is an issue best dealt with by the Utah Legislature and not the courts.

Barnard said he has serious doubts that the Legislature would pass a bill repealing the sodomy and fornication laws.

The appellate justices have taken the case under advisement and are expected to issue a ruling in the next few months.

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