Practice in Focus HB 209: Repealing One Remnant of Anti-Gay Discrimination in Maryland’s Criminal Code:
“Unconstitutional,” “Unenforceable,” and Still a Part of Maryland Law House Bill 209, introduced in the Maryland House of Delegates by Delegates Moon, Charkoudian, and Palakovich Carr aims to amend the Maryland Criminal Code and Family Law Code by removing definitions of criminal conduct listing “unnatural or perverted sexual practices” and replacing that language with “any other sexual conduct that is a crime.” Enforcement of these vague provisions has historically been used primarily to charge consenting adult men who engage in sex acts with each other. Delegate Moon described the bill’s function before the House Judiciary Committee simply: “Take out antiquated crimes in the Maryland code that had been used to target LGBTQ residents.” Those who follow the Maryland General Assembly closely should recognize the language as similar to an early version of House Bill 81, introduced in the 2020 Regular Session, which repealed the inclusion of sodomy in the same sections of the Maryland Annotated Code.
Legal practitioners in Maryland criminal courts may be surprised to see HB 209 come before the General Assembly in 2022, as these provisions of the code are rarely enforced. Indeed at the House Judiciary Committee hearing, C.P. Hoffman, Policy Director at FreeState Justice, described the provisions as “unconstitutional” and “unenforceable” following the Supreme Court’s 2003 ruling in Lawrence v. Texas. These sentiments were echoed by Carrie Williams from the Maryland Office of the Attorney General and Jessica Gart, representing the State’s Attorney’s Office for Prince George’s County, who also noted that prosecutions which included charges for “unnatural or perverted sexual practices” were ripe for appeal, thus creating inefficiency in already crowded courts. Lisae Jordan from the Maryland Coalition Against Sexual Assault summarized the problem with keeping these provisions in the Maryland code: “Only sex offenders should be charged with sex crimes, and the people who are having consensual sex are not sex offenders.” While those Marylanders charged under these statutes are unlikely to be sentenced, the availability of these charges sends mixed messages to the LGBTQ+ community who likely assumed that their private conduct was already considered purely private under the law. In addition to cleaning up erroneous sections of the Maryland code, HB 209 advances a key public policy goal for LGBTQ+ advocates: eliminating the means by which unconstitutional discrimination can be carried out under the law. Despite the evidence that few charges for “unnatural or perverted sexual practices” result in criminal penalties, this charge can still be leveled at members of the LGBTQ+ community to publicly condemn legal, private conduct. That mechanism was employed in May 2021 when, during a raid on the Bush River Books & Video store in Harford County, four men were charged with “perverted sexual practice.” The charges were eventually dropped against all four, only after the men were arrested and spent the night following their arrest in jail. One night in jail may appear like an inconvenience, rather than a gross miscarriage of justice to some. However, the collateral effects of these arrests should also be considered. First, the burden placed on the men charged in this case surely did not end when they were released from jail. The stigma that a charge of “perverted practice” carries in one’s
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The Advocate
March 2022