From Deseret News archives:
Utah, county sued over sodomy law
Man says he has been damaged by fear of prosecution
The individual, identified only as D.A.R., filed suit this week in 3rd District Court against Gov. Olene Walker, Attorney General Mark Shurtleff and Salt Lake County District Attorney David Yocom, as well as the state of Utah.
Brian Barnard, the man's attorney, said his client is not seeking monetary damages but seeks to avoid criminal prosecution for past and future conduct. "Plaintiff's fears of prosecution are real," the suit said.
The complaint says D.A.R., who is not married, has engaged in oral sex with a female who is older than 17 in heterosexual, private, noncommercial and consensual actions. He claims, however, that Utah's sodomy law criminalizing his sexual activity violates his constitutional privacy rights, along with his right to expression, which is protected under the First Amendment.
D.A.R. wants the courts to determine what his rights and responsibilities are under the U.S. and Utah constitutions.
"Plaintiff's fear of criminal prosecution has inhibited the plaintiff's ability to communicate and to pursue and further intimate personal relationships," the suit said. "A sexual act . . . is a direct and effective method of communicating love, affection, feeling and emotion."
The document said D.A.R. has suffered harm because his conduct has been restrained or inhibited "by the existence of and fear of criminal prosecution."
Barnard previously filed suit on behalf of another client in a similar case, but that was dismissed in October by the Utah Court of Appeals, which said the man in that case did not have any damages from his fear of being prosecuted.
The appeals court based its ruling in part on the fact that the man in that case had not been charged with breaking any laws, as well as Shurtleff's promise not to use the law to prosecute anyone.
A recent U.S. Supreme Court ruling struck down a Texas sodomy law.
E-mail: lindat@desnews.com
