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Everything you want to know about Sodomy in Alabama but were afraid to ask.

Posted by Andrew Segal | Feb 08, 2017 | 0 Comments

Everything you want to know about Sodomy in Alabama but were afraid to ask.

What is the legal definition of sodomy in Alabama?

Alabama does not independently define sodomy as a crime but defines criminal actions involving deviant sexual intercourse as sodomy crimes.

Deviant sexual intercourse means sexual conduct between unmarried people involving the sex organs of one person and the mouth or anus of the other. Consensual oral or anal sex between people married to one another is not a crime in Alabama.

See,13A-6-60(1)(2) Code of Alabama

Is all oral or anal sex between unmarried people a crime in Alabama?

It is a common misconception in Alabama that oral or anal sex between unmarried parties is a crime. These types of actions only become a crime if they are done without the consent of either party or under circumstances where one party either physically, mentally or legally is unable to give consent.

Not all forms of deviant sexual intercourse are punished by the law; only those which either lack consent or are forcible. In other words, consensual oral or annual sex between two adults done in the privacy of their own home should not be prosecuted under Alabama laws.

By way of analogy, sexual intercourse itself is not illegal in Alabama. But certain circumstances do make sexual intercourse criminal. For example, sexual intercourse with somebody who is incapable or unwilling to give consent is rape. Sexual intercourse with a married person is adultery.

Similarly, the legal definitions pertaining to sodomy crimes in Alabama are tied to specific instances of conduct making the f sodomy engaged illegal.

The  four most common Sodomy Crimes in Alabama:

I

 Sodomy in the First Degree

The most serious crime involving sodomy in Alabama is “Sodomy the First Degree” also called or Sodomy, First.

Sodomy the First Degree can be committed in three ways:

  1. This crime occurs if a person engages in deviant sexual intercourse with another person by forcible compulsion.

This means someone has been forced to engage in oral or anal sexual conduct and that physical force was used to overcome the earnest resistance of the party; this crime also can occur when someone has been forced to engage in oral or anal sex as a result of a threat express or implied which placed the person in fear of imminent death or serious physical injury to either themselves or another person.

  1. Sodomy first occurs when someone engages in oral or anal sex with someone who is not able to consent because they are either physically helpless or mentally incapacitated.

See,13A-6-63(a)(10(2) and (3)  Code of Alabama

For example, a person who is in a wheelchair or tied up would be physically helpless.

A person might can be mentally incapacitated if they were administered a narcotic or intoxicating substance without their knowledge and that rendered them temporarily incapable of controlling their conduct. Many date rape drugs lead to charges of sodomy as well as rape. Most common example of date rape charges would be Bill Cosby has been accused of date rape for allegedly slipping narcotic substances to the beverages of many women.

  1. The third way the crime of sodomy in the 1st° occurs when someone is over the age of 16 has deviant sexual intercourse with a person was under the age of 12. Thus, if a 17-year-old babysitter performs oral sex on the 11-year-old boy she is babysitting, she has committed the crime of sodomy. Similarly, this crime would occur if an 87-year-old man performed oral sex on a child under 12.

Defenses to sodomy first Degree

In all criminal cases, the specific defense depends on a combination undisputed facts, issues that are in dispute, and legal issues.

There are a number of defenses commonly seen in sodomy cases. The defense frequently depends on the nature of the sodomy charge.

  1. Defense in forcible sodomy cases

One of the more common defenses in forcible sodomy cases, is that there actually was consent. The defendant may be claiming that there was sexual conduct between the parties but that it was completely consensual and that the claims of force are not true and motivated by things such as the desire for revenge, regret of the woman, or things such as retribution if the man has moved on to another woman.

Surprisingly, the issue of identity, while it can be a valid defense, is not raised that often. This defense is simply a version of “I didn't do it”. In this case the accused is not saying that a crime did not occur, they are saying that they were not responsible for a crime that may have occurred. Often this type of defense is coupled with an alibi defense to establish that the accused person was in another place or was incapable of having committed the crime. In this line of defense sometimes the issue of mistaken identity is raised.

  1. Defense in physically or mentally helpless sodomy

In charges of physically or mentally helpless sodomy in the first degree the issue can focus on whether or not the person was either physically or mentally helpless. For example, I recently defended the case in which a woman got drunk and then engaged in sexual activity with my client. The issue was whether or not she was so very intoxicated as to be incapable of providing consent. The prosecutions argument was that she was so intoxicated as to be passed out and could not consent. Wild woman had passed out at some point in time she had come to and, given her statements, there was evidence that she was voluntarily participating in the sexual conduct. Ultimately, we prevailed in the charges against my client were dismissed.

Of course, this is not always a successful defense. I had one client who worked at a hospital took advantage of women after they been anesthetized. Between the videotaped evidence on the fact that these women were clearly incapable of consent, this did not seem like a case it would be wise to try. Here we negotiated but it was not a case where the client could walk away without any consequences.

What is the punishment for someone found guilty Sodomy first-degree?

In Alabama, the crime of sodomy, 1st° is a class a felony the minimum sentence is 10 years prison maxims is 99 years life if the offense involved a child under the age of 12, the minimum sentences 20 years prison and, if the offender was in the victim's six years of age or younger the minimum sentence life without parole. See Section 13A -5-6 (a) (1),(5) &(d), Code of Alabama.

This offense also carries a potential fine of up to $60,000

Because this is a sex crime, anyone convicted be subject to Alabama's sexual offender registration and notification act. This act would require that a person be registered as a sexual offender and that the public be notified about their conviction. A person subject to this law must comply with all terms and they are to do so can result in additional charges.

II

Sodomy; Second-Degree

 

The crime Sodomy in the Second-Degree occurs in two ways.

 

  1. If a person who is over the age of 16 engages in deviant sexual intercourse with another person and that person is under 16 years old but more than 12 years old, the crime is Sodomy in the Second Degree.

In other words, if a 17-year-old boy was to receive oral sex “a blow job” from his 15-year-old girlfriend, he would be guilty of this crime. Even if the 15-year-old girlfriend was an active, enthusiastic and willing participant, he would be guilty. This is because under Alabama law, she is not legally capable of providing consent but, he is old enough to be held legally accountable.

  1. This crime also occurs if someone engages in “deviant sexual intercourse”-in other words oral or anal sex, with a person who is not able to consent because they are “mentally defective.

A person is mentally defective if they suffer from a mental disease or defect to the degree that they are incapable of appraising the nature of their conduct.

See,13A-6-64(a)(1) &(2) Code of Alabama

What are the defenses to sodomy the second-degree?

  1. Age-related sodomy

Age-related sodomy is often treated differently and defended differently than other types of sodomy cases. When the “victim” and the person accused were not able to legally have sexual relations but, the parties willingly engaged in the conduct and while illegal, the age difference between the parties is not too much, many prosecutors will generously allow the accused to attend a counseling program so as to avoid the harsh consequences of a conviction.

If the case cannot be negotiated in that fashion, there may be other defenses that apply as to identification. It is very important to be aware that in age-related sodomy cases the issue of “consent “does not apply. This is because a person who is under age may not legally give consent the state of Alabama. Many a young man has, unknowingly, confessed to age-related sodomy by saying something along the lines of “I never forced her to do anything it was all consensual.”.

  1. Mentally defective sodomy

This type of crime occurs when one party has oral or anal sex with someone who has a significant mental disease or defect.

The defense may be whether or not the aggrieved parts has a sufficient mental defect to be considered “incapable” of appraising the nature of their conduct.” Force of the defense such as whether or not any type of sexual conduct occurred or whether or not this person committed the crime would still apply.

What is the punishment for Sodomy, Second Degree?

 

Second-degree sodomy is a class B felony under Alabama law meaning that a person without prior convictions looking at 2 to 20 years in state prison. If the second-degree sodomy involved a child was under the age of 12 the minimum sentence is 10 years State penitentiary. There may also be a fine imposed of up to $30,000.

 

This is also a sex crime and, anyone convicted be subject to Alabama's sexual offender registration and notification act. This act would require that a person be registered as a sexual offender and that the public be notified about their conviction. A person subject to this law must comply with all terms and they are to do so can result in additional charges.

 

III

Sexual misconduct

Alabama has a crime called sections this crime occurs someone engages deviant sexual person under circumstances of those covered by the law of sodomy First Degree or Sodomy Second Degree.

This is a rarely used “catchall provision “of the law to cover those instances where section contact occurred but in a manner, that did not file violate Alabama's First or Second Degree Sodomy laws.

See,13A-6-65 (Code of Alabama

In real life, I have only seen the section the law applied as a compromise between the defense and the prosecution; I have not seen anyone directly charged this provision.

Here is a hypothetical:  A 22-year-old married nurse comes home having gotten somewhat tipsy at “Happy Hour”. She is not so intoxicated as to be incapable of consent and she has no mental health problems. She goes upstairs without realizing her husband has fallen asleep downstairs on the couch. His brother, who got a bit “tipsy” himself, has wandered upstairs and is sleeping in their bed. She performs oral sex on her husband's brother thinking it is her husband. He does not stop her. He does not question her actions. When she realizes her mistake, she calls the police.

Is there a crime here?

Brother is not guilty of first degree sodomy; he did not force her to have sex; She is not underage and he did not contribute in any way to her getting tipsy.

Brother is not guilty of Second degree sodomy; again there is no age issue and she is not mentally defective.

Is he guilty of sexual misconduct? Frankly, I don't know. The catchall fits but it also could apply against her with him as a victim … while he hardly fought her off, it could be argued (since he was asleep and “tipsy') he did not consent either. We're going to just leave this “unsolved”

  1. Defenses to sexual misconduct

A defense to this type of case specific facts. In our example, here, the defense might simply be that her behavior was inappropriate but criminal and, given the facts case did not constitute a violation law

What are the consequences for someone's found guilty of sexual misconduct?

Sexual misconduct is a class A misdemeanor; the maximum sentence is one year in jail; the maximum fine is 6000.00

A first conviction for sexual misconduct requires someone to be registered as a sex offender under Alabama law however, the public notification provisions of Alabama's sex offender laws do not apply for a first conviction. The notification laws apply to a second conviction if that conviction does not arise out of the same set of facts and circumstances as the first conviction.

IV

Loitering for Purposes of Engaging or Soliciting Another Person for Deviant Sexual Intercourse.

Alabama has a law specifically addressing those instances somebody loiters or remains a public place for the purpose of engaging in or soliciting another person to engage in either prostitution or deviant sexual intercourse.

See,13A-11-9(a)(3) Code of Alabama

Defenses to loitering engaging sexual intercourse.

In my view, loitering is a bit odd offensive it it is a “thought crime”. In other words, is being arrested based on speculation that they will commit a future crime. Simply thinking about committing a crime without taking some sort of substantial step, is not sufficient some guilty. That means this type of case, we need to look at specific evidence to see what proof prosecutors can produce to establish someone's attempt to commit the crime.

Some circumstances the prosecution is fully capable of doing this as, many soliciting cases involve stings by the police officers and they will have both video and audio recording of the incident. The defendant's lawyer must view this evidence closely to see whether or not the evidence sufficient to result conviction. Even when the evidence is strong, some prosecutors permit to attend a counseling program and avoid addiction.

Punishment for loitering for purposes of deviant sexual intercourse

Statutory punishment for the crime of loitering is considered a violation punishable by no more than 30 days in jail with typical fines not exceeding $200. You need to be aware that loitering is frequently a municipal ordinance violation may, depending on the specific ordinance, carry greater fines and sentences.

Loitering for purposes of engaging in or soliciting deviant sexual intercourse is not specifically defined under Alabama law as a crime that requires mandatory registration as a sexual offender however, Alabama sexual offender registration laws state that if there is a finding sexual motivation the prosecution can seek to have the case treated as a sexual offense.

What do I do I have accused the crime of sodomy?

You should immediately seek the advice of a competent lawyer. If the police wish to speak with not done so yet, it would be wise to speak with a lawyer first. While nothing in this post is meant as legal advice, it is likely that lawyer would advise to have a consultation that before making any decision whatsoever as to be appropriate or beneficial to speak with law-enforcement. People were accused of crimes for we get calls of some urgency advising that the person “needs” to come speak with the officer right away. While law enforcement may be experiencing a “need” to speak with you, that does not necessarily that you have the same needs they do. There is a significant likelihood that any statements you make can and will be used against you in a court of law.

To protect your rights, you should seek to speak with a lawyer as quickly as you possibly can.

Of course, if you would like our help, feel free to contact us at the number and email listed below:

Segal & Segal 24/7 (256)533-4529

MrLegalSegal@gmail.com

About the Author

Andrew Segal

Andrew Segal is a former prosecutor who now represents the accused as a criminal defense attorney in Huntsville, Alabama area courts. Andrew graduated cum laude from Bowdoin College in Brunswick, Maine, in 1982. During his time at Washington College of Law at American University, he discovered hi...

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