Sodomy Law

The United States Constitution forbids criminal prosecution based on a status or condition rather than an act. Therefore, homosexuality as such is not and cannot be made illegal in North Carolina or any other state. Despite this, some politicians and members of the public still believe that homosexuality is outlawed. For example, during the 1985 General Assembly, Rep. Michael Decker introduced a bill to outlaw gay/lesbian groups in the University of North Carolina system, asserting that by allowing such groups, the university system was "aiding and abetting a felony." In 1999, a state senate hearing on a bill to reform the Crime Against Nature (CAN) law, Sen. Jim Forrester asked if the bill would "legalize homosexuality." And the 1995 General Assembly passed an "abstinence before marriage" law, N.C.G.S. ' 115C(e1)(3), that requires schools that provide AIDS education to teach students about the current legal status of same-sex activity. The bill’s sponsors apparently believed that all homosexual acts are illegal in North Carolina.

Although North Carolina does have a law on the books barring certain sexual acts (please see the section "Crime Against Nature," below), the act does not draw a distinction between hetero- and homosexual performance of these acts. Of greater legal significance, however, in the 2003 case Lawrence v. Texas, the U.S. Supreme Court declared it unconstitutional for states to prohibit acts such as oral and anal sex between consenting adults, regardless of sex or marital status, in the privacy of their own homes. As North Carolina legislators have yet to repeal the statute in Lawrence’s wake, it remains to be seen whether courts will allow prosecution of CAN arrests made for sexual activity taking place in public places.

In a Nutshell

	Due to the recent U.S. Supreme Court case Lawrence v. Texas, it is legal to have oral or anal sex with a consenting adult in private. It is also legal to ask someone to have oral or anal sex with you if it is clear that the acts will take place in private.
	Law enforcement officers in North Carolina are still arresting people under the CAN law for having for having oral or anal sex in public. They may also continue to arrest people under the CAN law for having oral or anal sex with a minor, with an incapacitated or disabled adult incapable of consent, or for material gain (prostitution). However, it remains to be seen whether, in light of Lawrence, the higher state courts will allow prosecutors to charge people with CAN for these activities.
	You may still be arrested for SOLCAN for asking someone to have oral or anal sex with you in public (or even in an "unspecified place") or for offering money for oral or anal sex. Again, it remains to be seen whether courts would allow prosecution.
	CAN and SOLCAN cases are often very difficult for the estate to win if the defendant does not plead guilty and the case goes to trial. If you are arrested for CAN or SOLCAN, a lawyer can help you weigh your options.
	If you are arrested for CAN or SOLCAN, do not give the officers any more information than your name or address.

Edited Fall 2003 by:

NC GALA Intern Vanessa Franco, Duke Law '04

and NC GALA Attorney Member Connie Vetter

The information provided on this website is for educational purposes only and does not create an attorney-client relationship between any parties. Consult an attorney if you need assistance with a legal matter.

This page was last updated on November 24, 2004.