''Kentucky v. Wasson'', 842 S.W.2d 487 (Ky. 1992), was a 1992

Kentucky Supreme Court The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the U.S. state of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky. The Kentucky Court of ...

decision striking down the state's anti sodomy laws that criminalized sexual activity between two people of the same-sex, holding that this was a violation of both the equal protection of the laws and the right to privacy. The

Kentucky Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia ...

case helped pave the way for many other states and eventually the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

to issue similar rulings.

The law at issue

At that time, Kentucky law criminalized consensual sexual relations between people of the same sex, even if conducted in private. Specifically, the law criminalized genital-oral (oral sex), genital-anal (anal sex), and anal-oral (rimming) sex -but only between partners of the same sex. Such sexual activities between mixed-sex (male-female) couples were legal. Such conduct was a misdemeanor punishable by up to 12 months in jail and a fine of up to $500. Solicitation of same was also a misdemeanor, punishable by up to 90 days in jail and a fine of up to $250. Historically, Kentucky's sodomy statutes had changed over time. The 1860 sodomy statute criminalized anal penetration by a penis and applied to both male-female couples and male-male couples. Because the law focused exclusively on penile-anal penetration, consensual sex between women was technically legal in Kentucky until 1974. In fact, in 1909 the Kentucky Supreme Court issued a ruling in ''Commonwealth v. Poindexter'' involving two African-American men arrested for consensual oral sex. In this decision the court upheld that the then current sodomy law did not criminalize oral sex but only anal sex. In 1974 Kentucky revised its statutes as part of a penal code reform advocated by the American Law Institute. While the American Law Institute urged states to decriminalize consensual sodomy and other victimless crimes, the Kentucky legislature chose to decriminalize anal sex involving male-female couples but to broaden the new statute to criminalize anal-genital, oral-genital, and oral-anal sexual contact involving same-sex couples (both male-male and female-female couples). Thus, the 1974 revised statute decriminalized consensual anal sex for mixed-sex couples but expanded criminalization of sexual acts to include both male and female same-sex couples.

Factual background

Jeffrey Wasson, a 23-year-old nursing student, was arrested in 1986 and charged with solicitation of same-sex sodomy as the result of an undercover sting operation conducted by the Lexington

police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and th ...

. The police selected an area and conversed with men to see if they would be solicited for

sex Sex is the trait that determines whether a sexually reproducing animal or plant produces male or female gametes. Male plants and animals produce smaller mobile gametes (spermatozoa, sperm, pollen), while females produce larger ones ( ova, of ...

under the 1974 statute defining fourth degree sodomy as actual or solicitation of consensual sodomy. As Wasson left The Bar Complex, a Lexington gay bar, to walk to his car, an undercover officer engaged Wasson in the parking lot and taped approximately 20 minutes of a conversation with Wasson. Near the end of the conversation Wasson invited the officer to come home with him. When prodded for details, Wasson suggested sexual activities that violated the Kentucky statute prohibiting homosexual activity. Wasson was one of 29 men arrested during this police sting, along with notable later gay rights activists like Brandon DeSiata. Rather than paying the fine, he sought legal representation to contest the law. In its recitation of the facts, the

noted that there "was no suggestion that sexual activity would occur anyplace other than in the privacy of Wasson's home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited." Judge Khalid in the initial trial court, Fayette District Court, dismissed the charges holding that the law was unconstitutional. Upon appeal, the Fayette Circuit Court reached the same conclusion. The Commonwealth appealed that decision. The

granted a transfer, bypassing the

Kentucky Court of Appeals The Kentucky Court of Appeals is the lower of Kentucky's two appellate courts, under the Kentucky Supreme Court. Prior to a 1975 amendment to the Kentucky Constitution the Kentucky Court of Appeals was the only appellate court in Kentucky. Th ...

Kentucky Supreme Court decision

On September 24, 1992, in a 4–3 ruling, the Court struck down anti-sodomy laws in effect since 1860, declaring them unconstitutional under Kentucky law with the declaration that it violated both the right to privacy and the right to equal protection under the law found in the

Kentucky Constitution The Constitution of the Commonwealth of Kentucky is the document that governs the Kentucky, Commonwealth of Kentucky. It was first adopted in 1792 and has since been rewritten three times and amended many more. The later versions were adopted in 179 ...

. Justice Charles M. Leibson authored the majority opinion, which noted:

More significantly, Kentucky has a rich and compelling tradition of recognizing and protecting individual rights from state intrusion in cases similar in nature, found in the Debates of the Kentucky Constitutional Convention of 1890 and cases from the same era when that Constitution was adopted... Kentucky cases recognized a legally protected right of privacy based on our own constitution and common law tradition long before the United States Supreme Court first took notice of whether there were any rights of privacy inherent in the Federal Bill of Rights.

Asserting that "state constitutional jurisprudence in this area is not limited by the constraints inherent in federal due process analysis", the majority opinion held that the law as written and enforced "infringed upon the equal protection guarantees found in the

." The case was styled ''Commonwealth of Kentucky v. Jeffery Wasson'', 842 S.W.2d 487. The decision was handed down on September 24, 1992. The case was among the early ones to strike down same-sex sodomy laws on the grounds that such laws violated the Equal Protection doctrine. Four other states preceded Kentucky in striking down same-sex sodomy laws. New York in '' New York v. Onofre'' and

Pennsylvania Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...

in '' Commonwealth v. Bonadio'' did so on grounds similar to those cited by the

. A lower appellate court in

Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...

and the Wayne County Circuit Court in

Michigan Michigan () is a U.S. state, state in the Great Lakes region, Great Lakes region of the Upper Midwest, upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the List of U.S. states and ...

had also struck down same-sex sodomy laws by that time, though neither state's highest court had yet issued such a holding. Those cases were '' State v. Morales'' and '' Michigan Organization for Human Rights v. Kelley''. Citing these cases, the Kentucky court wrote: "Thus our decision, rather than being the leading edge of change, is but a part of the moving stream." In time this statement was proven correct, as other states and eventually the

reached the same conclusion as Kentucky had in ''Wasson''. At the time, the decision - which was based solely on interpretation of the

- was at odds with federal case law on the same subject. The

had previously held in ''

Bowers v. Hardwick ''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults ...

'' that federal constitutional protection of the right of privacy was not implicated in laws penalizing homosexual sodomy. It was not until years after the ''Wasson'' case that the

revisited the issue and reversed its holding in ''

Lawrence v. Texas ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...

''..

References

External links

* {{caselaw source , case = ''Kentucky v. Wasson'', 842 S.W.2d 487 (Ky. 1992) , courtlistener =https://www.courtlistener.com/opinion/2431314/com-v-wasson/ , googlescholar = https://scholar.google.com/scholar_case?case=1383824708316085075 , justia =https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-558-tg-1.html
Law and PsycLaw Kentucky vs Wasson
History of Lexington, Kentucky Kentucky state case law LGBT in Kentucky United States equal protection case law United States privacy case law United States LGBT rights case law 1992 in United States case law 1992 in Kentucky 1992 in LGBT history

The law at issue

Factual background

Kentucky Supreme Court decision

See also

References

External links