Three days after a state appeals court struck down Alabama’s ban on consensual oral and anal sex, the state’s Republican attorney general, Luther Strange, is asking the court to reconsider its decision .
According to the Montgomery Advertiser, Strange argues that he only wants to use the broadly-written statute to prosecute rape and sexual assault cases and that it would never be used to prosecute consensual sex. This is similar to the argument that former Virginia Attorney General Ken Cuccinelli made in his effort to reinstate his state’s criminal sodomy ban.
Alabama Attorney General Luther Strange Thursday said in a statement that he would ask the Alabama Court of Criminal Appeals to reconsider a decision last week striking down the state's ban on consensual oral and anal sex.
In a statement, the attorney general said the office believed the law was unconstitutional as applied to consensual acts. However, he said he was concerned with the impact the decision may have on prosecutions involving nonconsensual sex.
Strange said in the statement the case "was not about consensual sex." In the appeal, the attorney general agreed and conceded that the state ban was unconstitutional as it applied to consensual acts. However, the office asked the court to preserve language it believed would continue to criminalize nonconsensual sex and send Williams' case back for a new trial.
Strange argued in his statement that the decision could jeopardize convictions for other crimes, citing the case of Thomas Gilbert, a Jackson County man who pleaded guilty earlier this year to sexual misconduct after being accused of getting a teenager drunk and having sex with the teenager without his consent. Court filings indicate that Gilbert is considering an appeal based on the consent issue.
"The Williams decision leaves all Alabamians less protected from nonconsensual sex and potentially calls into question numerous past convictions, involving both heterosexual and homosexual defendants and victims," Strange said in the statement.
The law as written was intended to criminalize all homosexual acts. The Criminal Appeals Court said last week that "no court" in the state had ruled on the statute's constitutionality in the wake of the Lawrence decision.