COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Salem, Virginia 

ELVIS GENE DePRIEST 

v. Record No. 1587-99-3 

 

COMMONWEALTH OF VIRGINIA 

LARRY RIERSON JONES 

v. Record No. 1595-99-3 

COMMONWEALTH OF VIRGINIA 

RUSSELL NEWAII POINDEXTER 

v. Record No. 1596-99-3 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA NOVEMBER 21, 2000 

JAMES PATRICK FAY 

v. Record No. 1597-99-3 

COMMONWEALTH OF VIRGINIA 

PHILLIP WAYNE EVANS 

v. Record No. 1598-99-3 

COMMONWEALTH OF VIRGINIA 

BARRY WAYNE HODGES 

v. Record No. 1599-99-3 

COMMONWEALTH OF VIRGINIA 

JOHN JOHNSON, S/K/A 

 JOHN WILLIAM JOHNSON 

v. Record No. 1600-99-3 

COMMONWEALTH OF VIRGINIA 
LAWRENCE T. MARTYS, S/K/A 

 LAWRENCE P. MARTYS 

v. Record No. 1601-99-3 

COMMONWEALTH OF VIRGINIA 

EVERETTE ELMO DAVIDSON 

v. Record No. 1619-99-3 

COMMONWEALTH OF VIRGINIA 

RONALD WALLER, S/K/A 

 RONALD THOMAS WALLER 

v. Record No. 1920-99-3 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Jonathan M. Apgar, Judge, in DePriest

Robert P. Doherty, Jr., Judge, in remaining cases 

 Sam Garrison (David Denton Lawrence; 

Michael B. Massey; Trumbo & Massey, P.L.C., 

Richard Lee Lawrence & Associates, on 

briefs), for appellants. 

 John H. McLees, Jr., Senior Assistant 

Attorney General (Mark L. Earley, Attorney 

General, on brief), for appellee. 

 Amicus Curiae: Log Cabin Republican Club of 

Northern Virginia (William G. Kocol; 

Eugene M. Lawson, Jr., Resident Counsel, on 

brief), for appellants. 

 Amicus Curiae: The Liberty Project 

(Julie M. Carpenter; Jared O. Freedman; 

Elena N. Broder-Feldman; Jenner & Block, on 

brief), for appellants. 

 Amicus Curiae: American Civil Liberties 

Union Foundation, American Civil Liberties 

Union of Virginia, Inc., and Lambda Legal 

Defense and Education Fund, Inc. (Michael 

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Adams; Matthew Coles; Marianne Merritt; 

Philip Hirschkop; Rebecca K. Glenberg; 

Stephen R. Scarborough; Hirschkop & 

Associates, P.C., on brief), for appellants. 

These ten consolidated appeals are from judgments of 

conviction in the Circuit Court of the City of Roanoke for 

solicitation to commit oral sodomy in violation of Code 

§§ 18.2-29 and 18.2-361.1 The appellants contend that the trial 

court erred in ruling that Code § 18.2-361: (1) does not 

violate the fundamental right to privacy guaranteed by Article I 

of the Constitution of Virginia; (2) does not violate the 

prohibitions against cruel and unusual punishment contained in 

Article I, Section 9, of the Constitution of Virginia and in the 

Eighth Amendment to the Constitution of the United States; and 

(3) does not violate the prohibitions against an establishment 

of religion contained in Article I, Section 16, of the 

Constitution of Virginia and in the First Amendment to the 

Constitution of the United States. The Commonwealth contends 

that the appellants lack standing to attack the 

constitutionality of Code § 18.2-361 facially and that each may 

assert the statute's constitutional invalidity only as the 

 

1

 Code § 18.2-29 provides, "[a]ny person who commands, 

entreats, or otherwise attempts to persuade another person to 

commit a felony, shall be guilty of a Class 6 felony." 

Code § 18.2-361, in relevant part, makes it a Class 6 

felony "[i]f any person . . . carnally knows any male or female 

person by the anus or by or with the mouth, or voluntarily 

submits to such carnal knowledge." 

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statute applies to him in his respective case. We affirm the 

judgments of the trial court. 

I. BACKGROUND

 Each appellant moved to dismiss the indictment against him, 

contending that Code § 18.2-361 is unconstitutional on its face. 

Each argued, inter alia, that the statute denies the fundamental 

right to privacy guaranteed by the Constitution of Virginia, 

that it violates the prohibition against an establishment of 

religion contained in the First Amendment to the Constitution of 

the United States and in Article I, Section 16, of the 

Constitution of Virginia, and that it violates the prohibition 

against cruel and unusual punishment contained in Article I, 

Section 9, of the Constitution of Virginia and the Eighth 

Amendment to the Constitution of the United States. After 

conducting a joint evidentiary hearing and receiving 

post-hearing briefs, the trial court denied the motions. This 

appeal addresses the trial court's ruling. 

At the hearing on their respective motions to dismiss, 

appellants called as a witness Roanoke City Police Lieutenant 

R.E. Carlisle, commander of the police Vice Bureau. Lieutenant 

Carlisle testified that the police had received numerous 

complaints of sexual activities in public places, including 

complaints that members of the public found used condoms 

littering the ground in city public parks. He testified that 

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children had found condoms, in some cases thinking they were 

balloons. 

 Responding to the foregoing complaints, Lieutenant Carlisle 

sent plainclothes police officers to surveil the public parks. 

They observed homosexual "cruising" occurring in and between 

Smith Park and Wasena Park and in the public restroom in Wasena 

Park. Based on this information, Lieutenant Carlisle sent 

several male undercover officers into the parks to investigate 

solicitation to commit sodomy. He instructed the officers: 

(1) they were not to entrap anyone; (2) they were to investigate 

"based on their training and see if anyone would offer to commit 

an act against them, or pay to commit an act against them"; and 

(3) to be charged, a person "had to show a willingness to carry 

out the act in the park." The charges that led to these appeals 

were made pursuant to those guidelines. One person proposed 

committing oral sodomy in a private place. That person was not 

charged. 

 The appellants also called as witnesses a number of sex 

therapists, clergymen and lay people, who testified to the 

prevalence, popularity and harmlessness of oral sex between 

consenting adults, married and unmarried, "gay" and "straight," 

in their own lives and in modern American culture. 

 The trial court issued a memorandum opinion explaining its 

denial of the motions to dismiss. The court first held that 

Code § 18.2-361 did not constitute an establishment of religion 

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or impose cruel and unusual punishment. It further held that, 

as applied to the appellants in these cases, Code § 18.2-361 

violated no right to privacy recognized by the United States or 

Virginia Constitutions. It ruled that the appellants lacked 

standing to complain of the potential application of the statute 

to other persons or to their private activities. 

 After the motions to dismiss were denied, nine of the 

appellants pled guilty and were tried jointly. The evidence in 

each case, as summarized by the assistant Commonwealth's 

attorney, disclosed that the respective appellant and an 

undercover police officer met in a public park and struck up a 

conversation that led to the appellant's proposing to engage in 

oral sodomy with the officer. In no case did the appellant 

specify that the act would occur other than in the public park. 

In four cases, the appellants reached for and fondled the 

officers' crotch areas while engaging in those discussions. In 

another case, the appellant exposed himself to the officer while 

masturbating in a public restroom. In one case, the appellant 

suggested "find[ing] a place where no one would see us" before 

performing fellatio on the officer. 

 In appellant Waller's jury trial, the arresting officer 

testified that he struck up a casual conversation with Waller 

while both were standing by the river in Wasena Park. Waller 

then "grabbed" the officer's genitals and fondled him while 

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discussing sex acts and proposing that they commit oral sodomy 

at a different spot in the park. 

The appellants contend that they have standing to challenge 

the constitutionality of Code § 18.2-361 on its face rather than 

only as applied to them. They further contend that Code 

§ 18.2-361 imposes cruel and unusual punishment and constitutes 

an establishment of religion. Because the appellants lack 

standing to attack Code § 18.2-361 on its face and because the 

statute neither imposes cruel and unusual punishment nor 

constitutes an establishment of religion, we affirm the 

judgments of the trial court. 

II. STANDING

Appellants first contend that Code § 18.2-361 violates the 

right to privacy as guaranteed by Article I, Section 1, of the 

Constitution of Virginia, which provides: 

Equality and rights of men -- That all men 

are by nature equally free and independent 

and have certain inherent rights, of which, 

when they enter into a state of society, 

they cannot, by any compact, deprive or 

divest their posterity; namely, the 

enjoyment of life and liberty, with the 

means of acquiring and possessing property, 

and pursuing and obtaining happiness and 

safety. 

 In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903), 

the Supreme Court explained the meaning of the liberty guarantee 

as follows: 

 The word "liberty," as used in the 

Constitution of the United States and the 

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several States, has frequently been 

construed, and means more than mere freedom 

from restraint. It means not merely the 

right to go where one chooses, but to do 

such acts as he may judge best for his 

interest, not inconsistent with the equal 

rights of others; that is, to follow such 

pursuits as may be best adapted to his 

faculties, and which will give him the 

highest enjoyment. The liberty mentioned is 

deemed to embrace the right of the citizen 

to be free in the enjoyment of all his 

faculties; to be free to use them in all 

lawful ways; to live and work where he will; 

to earn his livelihood by any lawful 

calling, and for that purpose to enter into 

all contracts which may be proper, 

necessary, and essential to his carrying out 

to a successful conclusion the purpose above 

mentioned. These are individual rights, 

formulated as such under the phrase "pursuit 

of happiness" in the Declaration of 

Independence, which begins with the 

fundamental proposition that all men are 

created equal; that they are endowed by 

their Creator with certain inalienable 

rights; that among these are life, liberty 

and the pursuit of happiness. 

Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis 

added). The constitutional right to liberty is not an unlimited 

license. Liberty must be enjoyed and exercised lawfully and in 

a manner not inconsistent with the equal rights of others. 

 An individual may challenge the constitutionality of a law 

only as it applies to him or her. See Coleman v. City of 

Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (citation 

omitted), reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). 

"That the statute may apply unconstitutionally to another is 

irrelevant; one cannot raise third party rights." Id. at 463, 

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364 S.E.2d at 242. See also Pederson v. Richmond, 219 Va. 1061, 

1066, 254 S.E.2d 95, 98 (1979) (finding one lacks standing to 

assert the privacy rights of third parties). 

The appellants contend that they fall within an exception 

to the general standing rule. 

In the past, the [United States Supreme 

Court] has recognized some limited 

exceptions to these principles, but only 

because of the most "weighty, countervailing 

policies." One such exception is where 

individuals not parties to a particular suit 

stand to lose by its outcome and yet have no 

effective avenue of preserving their rights 

themselves. Another exception has been 

carved out in the area of the First 

Amendment. 

Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973) (citations 

omitted); see also Santillo v. Commonwealth, 30 Va. App. 470, 

477 n.3, 517 S.E.2d 733, 736 n.3 (1999) (stating an exception to 

the general standing rule is in the area of First Amendment 

challenges). 

 This is not a First Amendment case. See Pederson, 219 Va. 

at 1066, 254 S.E.2d at 98. Contrary to the appellants' 

argument, sex therapists, married persons, and consenting adults 

engaging privately in sexual conduct (persons not involved in 

this case) do not stand to lose by the outcome of this case. 

They retain an "effective avenue of preserving their rights 

themselves." Any such person proposing or engaging in sodomy 

under circumstances supporting a claim of privacy may, upon 

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discovery and accusation, assert, in his defense, those 

circumstances and that claim. 

 We conclude, therefore, that appellants fall within the 

general rule that a party attacking the constitutionality of a 

statute must demonstrate that his own, rather than a third 

party's, rights are unconstitutionally infringed. Accordingly, 

appellants lack standing to challenge facially the 

constitutionality of Code § 18.2-361. Thus, we consider the 

constitutionality of the statute only as it applies to the 

appellants in this case and to their conduct that underlay their 

convictions. 

III. PRIVACY

Appellants contend that by inhibiting their ability to 

engage in homosexual conduct with other similarly disposed 

persons, Code § 18.2-361 infringes their right to privacy. In 

so arguing, they assert the privacy rights of married persons 

and of persons who, unlike them, may engage in such conduct in 

private. But the appellants' conduct was not private. Whatever 

may be the constitutional privacy rights of one who engages in 

sodomy in private, those rights do not attach to one who does 

the same thing in public. See Lovisi v. Slayton, 363 F. Supp. 

620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. 

denied, 429 U.S. 977 (1976). 

Lovisi involved a challenge to the constitutionality of the 

predecessor to Code § 18.2-361. Mr. and Mrs. Lovisi engaged in 

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sodomy with a third person in their home. They permitted 

themselves to be photographed committing those acts. The 

pictures fell into the hands of their children and became 

public. Lovisi claimed the statute unconstitutionally invaded 

his right of privacy. The court held that through publication 

Lovisi's acts ceased to be "private." The court said: 

The Court is faced with the . . . question 

of whether, if the Lovisis' conduct was not 

constitutionally protected, they may attack 

the constitutionality of [the statute] on 

the basis of the rights of third persons. 

. . . The Court . . . holds that they do not 

have standing to assert the constitutional 

rights of other persons and thus may not 

attack the constitutionality of statutes 

underlying their conviction on this basis. 

Id. at 623-24. 

The activities underlying the charges against the 

appellants were not conducted in private. Their solicitations 

were made to strangers in public parks. They proposed to commit 

sodomy in the public parks. The appellants' acts and their 

proposed conduct were clothed with no circumstance giving rise 

to a supportable claim of privacy. Those acts and proposed 

conduct fall squarely within the rule of Lovisi. 

IV. CRUEL AND UNUSUAL PUNISHMENT

 The appellants next contend that Code § 18.2-361 violates 

the prohibitions against "cruel and unusual punishment" 

contained in Article I, Section 9, of the Constitution of 

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Virginia2 and the Eighth Amendment to the Constitution of the 

United States.3 They argue that the disparity between the 

punishment provided for sodomy and that provided for adultery or 

fornication effects the imposition of cruel and unusual 

punishment upon those convicted of sodomy. We disagree. 

 It lies within the province of the legislature to define 

and classify crimes and to determine the punishments for those 

crimes. Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582 (1921). 

No punishment authorized by statute, even though severe, is 

cruel and unusual unless it is one "prescribing a punishment in 

quantum so severe for a comparatively trivial offense that it 

would be so out of proportion to the crime as to shock the 

conscience . . . ." Id. at 745, 109 S.E. at 588. We find our 

consciences shocked neither by appellants' sentences4 nor by the 

five-year maximum sentence provided by the statute. Therefore, 

we find no imposition of cruel or unusual punishment. 

 

2

"[E]xcessive bail ought not to be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted 

. . . ." Va. Const. art. I, § 9. 

3

"Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted." U.S. 

Const. amend. VIII. 

4

In nine of the ten cases, the defendants entered 

conditional pleas of guilty with plea agreements that the 

appropriate sentences would be twelve months in jail suspended 

and a $1,000 fine. In the tenth case, the defendant was tried 

and convicted by a jury, and sentenced to serve sixty days in 

jail and a fine of $1,500. 

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V. ESTABLISHMENT OF RELIGION

 Finally, the appellants contend that Code § 18.2-361 

violates the prohibition against an "Establishment of Religion" 

contained in Article I, Section 16, of the Constitution of 

Virginia5 and the First Amendment to the Constitution of the 

United States.6 We disagree. 

The appellants produced testimony concerning the religious 

origins and development of the law against sodomy. They argue 

that its religious origin renders Code § 18.2-361 

unconstitutional. 

Although Code § 18.2-361 may have a basis in religious 

values, this alone is not dispositive of the constitutional 

issue. In rejecting a constitutional challenge to Maryland's 

Sunday closing laws, the Supreme Court held in McGowan v. 

Maryland, 366 U.S. 420 (1961): 

However, it is equally true that the 

"Establishment" Clause does not ban federal 

or state regulation of conduct whose reason 

or effect merely happens to coincide or 

harmonize with the tenets of some or all 

religions. In many instances, the Congress 

or state legislatures conclude that the 

general welfare of society, wholly apart 

from any religious considerations, demands 

such regulation. Thus, for temporal 

purposes, murder is illegal. And the fact 

 

5

"[T]he General Assembly shall not . . . confer any peculiar 

privileges or advantages on any sect or denomination . . . ." 

Va. Const. art. I, § 16. 

6

"Congress shall make no law respecting an establishment of 

religion . . . ." U.S. Const. amend. I. 

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that this agrees with the dictates of the 

Judaeo-Christian religions while it may 

disagree with others does not invalidate the 

regulation. So too with the questions of 

adultery and polygamy. The same could be 

said of theft, fraud, etc., because those 

offenses were also proscribed in the 

Decalogue. 

Id. at 442 (citations omitted). 

The Supreme Court has defined a three-pronged test to 

determine whether a statute effects an establishment of 

religion. To be found free of such an establishment, "first, 

the statute must have a secular legislative purpose; second, its 

principal or primary effect must be one that neither advances 

nor inhibits religion; finally, the statute must not foster 'an 

excessive government entanglement with religion.'" Lemon v. 

Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted). 

 The appellants have failed to prove that the primary effect 

of Code § 18.2-361 is to advance or inhibit religion. Nor have 

they proved that Code § 18.2-361 fosters "excessive governmental 

entanglement with religion." Id. To the contrary, the statute 

rests plainly on long established secular values concerning 

sexual conduct. 

Thus, the appellants have failed to demonstrate that Code 

§ 18.2-361 effects an establishment of religion. 

We affirm the judgments of the trial court. 

 Affirmed.

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