Some people who were convicted of sodomy remain on the Mississippi Sex Offender Registry and could sue any time, according to an attorney who has fought such laws across the country.
by Taylor Vance and Molly Mintas
Mississippi coughed up more than $400,000 this year to attorneys who sued the state over an unconstitutional sodomy law that criminalizes oral and anal sex, and if a similar suit is filed in the future, it could pay even more money.
The Legislature appropriated and paid the fees to civil rights attorneys from multiple legal organizations after Mississippi Attorneys General Jim Hood and Lynn Fitch spent years defending the antiquated sodomy law—Mississippi Code Section 97-29-59.
But Mississippi could be on the hook for even more fees, according to Matthew Strugar, an attorney who helped bring the case. That’s because lawmakers this session let die in committee a bill to repeal the state’s “unnatural intercourse” law, which was primarily used decades ago to target LGBTQ+ Mississippians and sex workers.
Mississippi officials no longer prosecute people for having consensual sex, but some people convicted in the past of sodomy are still required to register as sex offenders.
This means the people who, due to a quirk of the lawsuit, remain on the Mississippi Sex Offender Registry for sodomy convictions could sue the state at any time, Strugar said, even though state officials are no longer requiring those convicted of sodomy to register as sex offenders.
Mississippi is “still vulnerable to a lawsuit from another person who remains on the registry,” said Strugar, who received a cut of the fees in early April via the Center for Constitutional Rights. Some of these people were convicted decades ago.
The U.S. Supreme Court declared unconstitutional laws that criminalize private, consensual sexual conduct in the 2003 case Lawrence v. Texas. Even the conservative U.S. Fifth Circuit Court of Appeals acknowledged Mississippi’s law was unconstitutional when it reviewed and affirmed the attorneys’ fees, the amount of which Fitch’s office contested last year.
Initially considered a common-law crime, sodomy has been illegal in Mississippi since the state’s founding and was codified into law in 1839. In the original 1890 state Constitution, sodomy was included in a list of crimes, along with rape, adultery and fornication, for which courts were allowed to exclude the public from attending or witnessing the prosecution.
Strugar has sued a number of states over sodomy laws. He noted there are more problems with Mississippi’s law than the possibility of more litigation. The law states: “Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.”
The law is vague, Strugar said, lacking a description of what is a “crime against nature committed with mankind.” It also doesn’t distinguish between consensual and nonconsensual oral and anal sex.
“There’s a lot you can do with a law that doesn’t say what it’s prohibiting,” Strugar said. “You can say it prohibits whatever you want it to prohibit.”
READ MORE: Mississippi to pay more than $400K in attorneys’ fees over unconstitutional sodomy law
The same law is also Mississippi’s only prohibition against bestiality. When people in Mississippi are prosecuted for bestiality, they are technically charged under the sodomy law, Strugar said.
This means some of the half-dozen or so men still on the registry could have committed sexual assault or had sexual activity with an animal, but Mississippians seeking to find information on sex offenders in their area would not be able to tell from the online data, which only lists them as guilty of sodomy.
The reason these men weren’t removed from the registry has to do with how the case played out. It was originally filed as a class-action lawsuit in 2015, meaning if Strugar’s clients had prevailed, Mississippi would have had to remove from its registry every person with a sodomy conviction.
But in an effort to work with the state, Strugar negotiated to delete the names of more than 30 Mississippi women who had been convicted under Louisiana’s unnatural intercourse law and required to register as sex offenders in Mississippi. The move lowered the number of people with a sodomy conviction in Mississippi below the threshold needed for a class-action suit, forcing Strugar to represent people individually.
The men who remain on the registry are mainly poor, Strugar said, and likely not in a position to navigate the process of getting in touch with a civil rights attorney.
Still, Strugar said he and the other attorneys fought to invalidate Mississippi’s law. They had hoped U.S. District Judge Carlton Reeves, who initially ordered the state to fork over money in attorneys’ fees, would take that step. Instead, he ordered the state to purge the plaintiffs from the sex offender registry.
“He is one of the most courageous judges in the country, but he still took a narrow ruling,” Strugar said.
The easiest way the state could protect itself from a similar suit in the future and avoid paying more fees is to repeal its sodomy law, which state Rep. Jeramey Anderson, a Democrat from Moss Point, has tried to do for several years.
Anderson has introduced a bill numerous times that would have simply deleted the “mankind” portion of the statute but left the bestiality part of the law intact, which would have essentially repealed the sodomy law.
“This law is discriminatory and it’s antiquated,” Anderson told Mississippi Today.
Last year, the House speaker’s office referred Anderson’s bill to the House Judiciary B Committee, which deals with criminal laws. The committee is led by Rep. Kevin Horan, a Republican from Grenada who is also a criminal defense attorney.
Horan said he doesn’t remember the bill or recall anyone approaching him about it, so it would have easily fallen through the cracks during a chaotic legislative session. But the three-term lawmaker said he doesn’t think he would have advanced it out of committee even if someone had asked him to pass it.
“I can’t say that I would take it up,” Horan said. “I wouldn’t want to take it up in Judiciary B. I don’t have any appetite for it.”
Senate Appropriations Chairman Briggs Hopson, a Republican from Vicksburg who authored the bill doling out the money in attorneys’ fees, did not respond to a request for comment about the appropriation bill or whether he thinks the expenditure was a wise use of taxpayer dollars. Lawmakers routinely appropriate tax dollars each year to go toward various legal cases.
This article first appeared on Mississippi Today.
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