Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws ChristopherR. Leslie* Millions of laws fill American statute books. Operating without om- niscience and with finite resources, law enforcement officials cannot pos- sibly enforce them all. Occasional calls to purge criminal and civil codes of archaic and unenforced laws are rarely answered.' So it comes as no surprise that many laws are simply not enforced.2 Some are forgotten, but not gone. Some are viewed by observers as historical curiosities or hu- morous trivia rather than legitimate laws. Courts, scholars, and the public tend to view such unenforced laws as inconsequential.3 Unenforced laws need not be repealed, the argument goes, because they are harmless. Un- fortunately, this reasoning can lull legislators and the electorate into un- warranted complacency. A criminal law, though not enforced through prosecutions, may still affect society. This Article presents a case where courts and mainstream scholars incorrectly presume that a lack of crimi- nal enforcement necessarily means an absence of harm: sodomy statutes. The Article demonstrates that the very existence of sodomy laws creates a criminal class of gay men and lesbians, who are consequently targeted for violence, harassment, and discrimination because of their criminal status. Although scholars have written numerous articles about sodomy laws since the Supreme Court's decision in Bowers v. Hardwick,4 one important aspect of sodomy laws has been largely ignored. Despite the * Assistant Professor of Law, Chicago-Kent College of Law. The author wishes to thank Kathy Baker, Mara Goldman, Hal Krent, David McGowan, Miranda McGowan, Sheldon Nahmod, Tony Reese, Laura Seigle, and Jeffrey Sherman for their criticisms of previous drafts. All remaining mistakes and omissions belong to the author alone. I However, sometimes state legislatures do recognize that their criminal codes are filled with outdated laws and correspondingly revise their statute books. See Poe v. Men- ghini, 339 F. Supp. 986, 988 (D. Kan. 1972) ("Several years ago, the Kansas Legislature recognized that many Kansas criminal statutes were archaic and obsolete and that a com- plete modernization of the Criminal Code was required?'). 2 Cf Poe v. Ullman, 367 U.S. 497, 512 (1961) (Douglas, J., dissenting) ("[It would be absurd to pretend that all criminal statutes are adequately enforced?'). 3 Of course, this broad statement is subject to many important qualifications and ex- ceptions. The prime exception is First Amendment jurisprudence, where courts recognize that unenforced laws can chill protected speech. See, e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 777 F.2d 1046, 1055 (5th Cir. 1985); Spartacus v. Board of Trustees of Ill., 502 F. Supp. 789, 796-97 (N.D. Ill. 1980) ("Injury to First Amendment rights may result from the threat of enforcement itself, since it may chill ...ardor and eliminate.., desire to engage in protected expression?'). 4 478 U.S. 186 (1986). Harvard Civil Rights-Civil Liberties Law Review [Vol. 35 fact that state sodomy statutes provide for imprisonment of up to twenty years for committing private sodomy with another consenting adult, 5 a persistent myth maintains that laws proscribing consensual sodomy be- tween adults are not enforced and, as a result, inflict no injury. This Arti- cle demonstrates that simply because a law does not result in prosecu- tions or convictions, it does not necessarily follow that the law is harm- less. This case study of sodomy laws illustrates how the mere existence of an "unenforced" criminal law creates a criminal class whose members are treated as felons, even though they have been convicted of no crime. Part One presents the general myth that unenforced laws are without consequence and shows how this myth affects perceptions of state sod- omy statutes. It briefly discusses the Hardwick case and explains how the myth that sodomy laws are not enforced-and are therefore harmless- affected the outcome of Bowers v. Hardwick. Part Two initiates the case study of sodomy laws by debunking the myth of harmlessness. Despite the widespread perception that sodomy laws are benign, this section explains how sodomy laws are used to cre- ate a criminal class composed of gay and lesbian Americans, regardless of whether these individuals commit sodomy or even live in states that maintain sodomy laws. Part Two explains how a criminal law that is not enforced through prosecutions can still cause insidious social and legal consequences. The primary impact is symbolic: nominally unenforced laws are used to classify groups and stigmatize common behavior. By creating a criminal class, sodomy laws stigmatize gay men and lesbians, which weighs heavily on their psyche. By labeling gay men and lesbians as criminals, sodomy laws make gay individuals targets for physical vio- lence in the form of gay bashing, sometimes perpetrated as de facto en- forcement of sodomy laws. Sodomy laws encourage the abuse of gay citizens by both private individuals and police officers. Part Three discusses how sodomy laws are enforced through mecha- nisms short of criminal prosecution. Public agencies, private actors, and courts all rely on the criminality of sodomy to justify discrimination against gay and lesbian Americans. Sodomy laws are used to facilitate employment discrimination, bias against gay and lesbian parents in cus- tody disputes, discrimination against gay organizations, discriminatory enforcement of solicitation statutes, and immigration discrimination. Part Four engages in the status versus conduct debate and argues that sodomy laws create a class of presumptive criminals. Although support- ers of sodomy laws routinely assert that the statutes punish only conduct, this section shows how, in fact, sodomy laws convert all gay men and lesbians into presumptive felons based on their sexual orientation, a status. Gay citizens are consequently treated as criminals without any 5 See, e.g., VA. CODE ANN. § 18.2-361 (Michie 1996). 2000] "Unenforced" Sodomy Laws proof of conduct. This section shows how this conflation of status and conduct is both legally improper and factually inapt. Ultimately, an examination of the ongoing harm caused by sodomy laws illustrates but one facet of homophobia. Although this Article con- cludes that the existence of state sodomy laws is used to brand gay men and lesbians as criminals-a criminal label that is subsequently used to justify a myriad of indignities against gay citizens-sodomy laws are obviously not the sole cause of homophobia. Homophobia is far too com- plex a phenomenon to have a singular explanation. Gay people are stig- matized by several sources, including religion, social mores, and, as this Article argues, the law. Eliminating one cause of stigmatization among many may not be a panacea but would be a step in the right direction. I. The Pervasive Assumption that Unenforced Laws Are Harmless The general purpose of criminal law is to punish and deter. Legisla- tors criminalize the conduct they determine is most egregious to the pub- lic weal. Once a prohibition is codified in a criminal statute, violators are subject to penal sanctions, which serve the complementary functions of punishment and deterrence. The individual violator is punished for her transgression, usually through imprisonment, fines, or both. The punish- ment also deters future violations of the criminal code, both by the con- victed individual (specific deterrence) and by society at large (general deterrence), which learns from the convict's mistakes. Both of these functions, punishment and deterrence, require active enforcement of the criminal statute in question. If the police never en- force a given criminal statute, then prosecutors never prosecute and juries never convict. Without convictions, trial judges never sentence violators of the statute, and logic suggests that the purposes of the statute cannot be achieved. If the law is never enforced, then people who violate the law are never imprisoned or fined. Consequently, without punishment, the argument goes, there is no deterrence because only the threat of punish- ment deters. An unenforced criminal statute is thus perceived as useless because it cannot achieve the general purposes of criminal law. Through either sleight of hand or untested logic, "useless" is often equated with "harm- less." After all, if no one is punished under a law, then no one is held ac- countable if they commit the proscribed act. Furthermore, because the absence of punishment undermines the deterrent value of the law, no one experiences the harm of restricted personal liberties. In theory, an unen- deterrence eviscerated, people con- forced law is harmless because, with 6 tinue to commit the proscribed act without any fear of punishment. 6Some scholars suggest that outmoded laws are harmless because they are not en- forced and that statutory repeal is unnecessary since prosecutors serve as a safety wall. Harvard Civil Rights-Civil Liberties Law Review [Vol. 35 Nowhere is this logic more often applied than in the context of sod- omy laws. 7 Although all fifty states and the District of Columbia had sodomy laws on their books in the mid-twentieth century, since then over half of the states have discarded their sodomy laws. 8 This leaves ap- proximately twenty states with sodomy laws in effect. The net result is that the United States is "the only major Western industrial democracy where same-sex relations continue to be illegal in a significant part of the country."9 However, because sodomy laws are perceived as unenforced, most courts and scholars assert that they are harmless.' 0 This section evaluates the bases and ramifications of this perception. A. "HarmlessLaws" and the Hardwick Case In the summer of 1982, Michael Hardwick worked at a gay bar in Atlanta, Georgia." When Hardwick left the bar one afternoon holding a beer, Officer Keith Torick issued him a ticket for drinking in public.