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Mississippi to pay more than $400K in attorneys’ fees over unconstitutional sodomy law

Mississippi will have to pay more than $400,000 in attorneys’ fees after the attorney general’s office spent years defending a sodomy law that criminalizes oral and anal sex.

The law in question — Section 97-29-59 — was deemed unconstitutional in 2003 when the U.S. Supreme Court ruled in the case Lawrence v. Texas that private sexual conduct was constitutionally protected.

But Mississippi kept its sodomy law on the books, opening the door for a 2016 legal challenge that resulted in the expensive attorneys’ fees.

The AGs office, under both Democrat Jim Hood and Republican Lynn Fitch, fought the class action lawsuit by the Center for Constitutional Rights and other advocacy legal organizations, which sued on behalf of five Mississippians who were required to register as sex offenders for sodomy convictions.

The case was finally resolved this summer when the 5th U.S. Circuit Court of Appeals reviewed and affirmed the attorneys’ fees – and that Mississippi’s sodomy law is unconstitutional. The deadline for the state to appeal passed earlier this month.

Yet Mississippi’s “unnatural intercourse” law is still law. A state representative introduced a bill earlier this year to repeal it, but it received no attention and died in committee. And according to an attorney who worked on the lawsuit, there are still 14 people on the Mississippi Sex Offender Registry who were solely convicted under that law.

They could sue at any time, said the attorney, Matthew Strugar, and put the state on the hook for even more fees.

“They could file a lawsuit tomorrow,” Strugar said. “And given what the Fifth Circuit has said about the law being unconstitutional, it should be an easy win for those people.”

A spokesperson for the AGs office said Fitch does not have the authority to remove these 14 Mississippians from the registry. Mississippi code requires sex offenders to petition a circuit court in order to be removed from the registry.

Because the state’s unconstitutional sodomy law does not distinguish between consensual and nonconsensual sex, the circumstances that led to the convictions of the 14 Mississippians aren’t immediately known.

Rep. Jeramey Anderson, D-Escatawpa, said he did not expect his bill to repeal the sodomy law to go anywhere because leadership has prioritized passing laws that harm, not help, the state’s LGBTQ+ community. He has introduced the same bill three times since 2018; it has died in committee each time.

“I mean, the legislative process within itself is built for a small group of people from one side of the political spectrum,” he said. “In an ideal world, yes, I would love to have a meeting with leadership about this issue, whether that’s with the chair or whether that’s with the speaker.”

Anderson doesn’t have much hope that’ll happen even though he plans to reintroduce the bill next year.

“Because of the legislation (that’s) being pushed, it’s a waste of time to do that,” he said. “I’d rather introduce the bill and have some pressure put on by folks outside the Capitol. That’s where the rubber meets the road.”

Buttressing the lack of action on this law in Mississippi, legal experts on sodomy laws say, is the U.S. Supreme Court decision that overturned Roe v. Wade last year. In his concurring opinion, Justice Clarence Thomas wrote the court should reconsider other cases like Lawrence that deal with privacy rights.

“And probably for some states that means they’ll be reluctant to repeal it,” Gregory Nevins, a lawyer at Lambda Legal, told the New York Times. “As we saw, there were a lot of old abortion laws on the books that got dusted off after Dobbs.”

When Lawrence was decided in 2003, Mississippi was one of 13 states that still enforced a sodomy law banning consensual, non-procreative sex between adults. Strugar and the Center for Constitutional Rights brought lawsuits against a handful of these states, including Mississippi.

In some states, the lawsuit led to change. In South Carolina, the state settled shortly after a similar lawsuit was brought, removing people who were convicted under the state’s “buggery” law from its sex offender registry. So did Idaho.

Not in Mississippi. No other state fought his lawsuit as long or as hard as Mississippi did, Strugar said.

“We tried to reason with them and not file a lawsuit whereby the state of Mississippi would end up having to pay all this money,” he said. “They didn’t want to budge, so we had to do what we had to do.”

Mississippi’s law dates back to the early 1800s and bans oral and anal sex between consenting adults as well as bestiality.

It reads: “Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.”

Anyone who is convicted of one offense under this law is put on the sex offender registry for 25 years, after which time they can petition for removal. But two convictions result in a lifetime registration. And coming off the list is a rare feat: As of 2018, only four people had ever successfully petitioned for removal, according to the lawsuit.

The law primarily targeted poor and Black Mississippians, Strugar said. Their status on the registry imposed harsh burdens, preventing them from getting jobs, providing crucial care to their kids and even from going to public campgrounds or parks — places “where minor children congregate,” the complaint says.

There were two ways that Mississippians who were plaintiffs in the lawsuit ended up on the registry. The first, which applied to one plaintiff named “Arthur Doe,” was a conviction under the “unnatural intercourse” law in Mississippi. The second scenario involved people who had moved to Mississippi from Louisiana where they had been convicted under that state’s law that criminalized solicitation of sodomy.

Even though Mississippi does not criminalize solicitation of sodomy, the state still required these people to register as a sex offender — simply because the act of oral and anal sex is a registerable offense in Mississippi.

“We tried to negotiate with them for months,” Strugar said. “They refused to budge. They refused to take people off the registry. They were like, ‘well, that was Texas’ law the Supreme Court ruled on, not ours.”

“That’s a wild way to think about it,” he added, because Mississippi’s law is nearly identical to the Texas law that was ruled unconstitutional.

The lawsuit wound through the courts for years. In 2018, the AGs office agreed to a partial settlement to remove the people with Louisiana convictions from the registry.

But there was a wrinkle: U.S. District Judge Carlton Reeves required Arthur Doe to have his petition heard in state court before the federal lawsuit could be resolved.

By then, Fitch had taken over the case. Strugar said Fitch’s office never settled with Arthur Doe, but his federal claims were ultimately dismissed by Reeves after the Hinds County Circuit Court vacated his conviction thus removing him from the registry.

But most of the responsibility for the attorneys’ fees lies with Hood, Strugar said. When he brought the lawsuit, Strugar said he’d heard complaints from people in Mississippi that it was a bad look for Hood, who was contemplating a run for governor.

“They said, ‘oh, you liberal civil rights folks, Jim Hood is the only chance we’ve got for statewide office, his case could look bad for him,’” Strugar said. “Then you shouldn’t fight it.”

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