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N.C. sodomy law still destroying lives
Priest charged for seeking private, consensual sex

by David Stout . Q-Notes staff
The Rev. Michael Penland, an Episcopal priest from Boca Raton, Fla., was charged this summer in Waynesville, N.C., for allegedly soliciting sex from an undercover police officer in a public park restroom.

In this era of epic same-sex indiscretions by the likes of evangelical power-broker Rev. Ted Haggard, U.S. Sen. Larry Craig and U.S. Rep. Mark Foley, a gay sex scandal involving an obsure clergyman is barely salacious enough to raise an eyebrow. However, Penland’s case has far-reaching implications for the LGBT community in North Carolina.

Waynesville Police were conducting Operation Summer Heat in Waynesville Recreation Park after receiving complaints that men were having sex in the park’s restroom. Waynesville is a city of about 10,000 located approximately 30 miles southwest of Asheville.

Penland’s arrest report states that on June 28 he solicited an undercover cop “by asking him if he could go home with the officer and engage in sex.” Penland was “in the process of following the undercover officer ‘home’ when he was stopped” outside the park and cited for soliciting a crime against nature.

Penland, 46, allegedly told the arresting officer that he was a minister at a church in Florida and that neither his parishioners nor his wife of 17 years knew about his same-sex liaisons. He reportedly explained that he was in North Carolina to visit “an aunt who is terminally ill.”

Because Penland was charged out of state, leaders at Boca Raton’s St. Gregory’s Episcopal Church weren’t aware of the situation until an Asheville Citizen-Times reporter called Sept. 5 seeking comment. Penland was dismissed from his position as Youth Minister the same day. The current state of his marriage is unknown.

What’s quite clear, however, is the Waynesville Police report which shows that Penland wasn’t seeking to have sex in the restroom and didn’t expose himself, engage in any unwanted touching or attempt to exchange money for sex. He was cited for merely propositioning another adult male for private, consensual sex.

While many people would condemn Penland for his ethics, his conduct was not illegal. As Frank Cerabino opined in the Palm Beach (Fla.) Post, “[Penland’s] ‘crime,’ basically, is being gay in North Carolina.”

CAN law overturned in ’03

It wasn’t supposed to be this way any longer.

In 2003, national LGBT and civil liberties groups hailed the U.S. Supreme Court’s ruling in Lawrence v. Texas for invalidating sodomy laws in all of the 13 states where they were still on the books at the time, including both Carolinas.

Four years later, North Carolina’s Crime Against Nature (CAN) ordinance and South Carolina’s Buggery measure are still written into the states’ penal codes. And, as Penland’s case demonstrates, the CAN law is still being used punitively.

If sodomy prohibitions are unconstitutional, how is this possible?

Ian Palmquist, the executive director of the statewide LGBT advocacy organization Equality NC (ENC), says there are a few reasons why North Carolina’s CAN law persists.

The first explanation is simply that no one accused will stand up to the charge in court.
An arrest for soliciting or committing a crime against nature provokes such shame and fear of public exposure, he says, that “people just want to make the charge go away, so they plead guilty or accept a lesser charge.”

The situation is frustrating because “the courts would not uphold the charge” at trial, he says.
In addition, the ambiguous wording of the CAN statute (“If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon”) makes it an ideal charge for district attorneys prosecuting all types of sex-related offenses — another reason the law endures.

“Equality NC has been working to change the law,” Palmquist explains, “but the [state] district attorneys association has opposed making that change. It’s such a vague law they can tack it on when they can’t get anything else to stick.”

The fact that the North Carolina Conference of District Attorneys supports keeping the CAN law means the effort to strike it can’t get any traction in the N.C. General Assembly.

“There hasn’t been a lot of enthusiasm in the legislature,” Palmquist says, offering a final point. “We introduced a bill in a previous session to replace the CAN law with specific laws against bestiality, prostitution, public sex and sex with minors that would treat the crimes equally for all people. Due to district attorneys’ opposition, it didn’t get much support.”

ENC is currently working behind the scenes to secure allies for another push against the CAN law, possibly in the 2009 legislative session.

For now, though, everyone’s watching to see what Penland will do. Given the circumstances of his arrest, he’s the ideal candidate to deliver the CAN law a final death blow. At press time, a Nov. 7 court date has been set for his case.

Penland’s attorney, Al Messer of Asheville, declined to comment when contacted by Q-Notes.

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