James Gill: Applying a law that isn’t

It is hard to believe there was a time when an American citizen could be busted just for being gay.

Well, anywhere else it’s hard to believe. It was still happening in Baton Rouge last month.

Sheriff Sid Gautreaux now says he will quit assigning undercover deputies to cruise Manchac Park so they can collar any man who responds to a fake come-on. It was a waste of time, for DA Hillar Moore III refused charges every time, but nobody at the sheriff’s office seems to have noticed. Only when gay groups rounded on him after reading about it in the paper did Gautreaux back off.

This may not be law enforcement at its most enlightened, but Gautreaux does not deserve all the blame. Sure, he emerges as a lunkhead, but he is just as on the ball as your average state legislator. Indeed, the Capitol is largely to blame for the malicious and unconstitutional stunts of Gautreaux’ winsome lads.

You might think, if you should curl up with Louisiana’s Revised Statutes, that you will emerge with a clear idea of what is legal and what isn’t. But it ain’t always so. You will read, for instance, that “crime against nature” –— oral or anal sex — can get you five years in the pen.

If you have been paying even cursory attention to the news, you will know that what Louisiana calls “crime against nature” is not, in fact, a crime anywhere in this country. The U.S. Supreme Court ruled 10 years ago that such laws are unconstitutional. That decision, however, seems to have escaped the attention not only of the East Baton Rouge Sheriff’s office but of the judges who set bond before releasing the gays they rounded up. Moore, although his office threw out at least 12 such cases in the last couple of years, evidently never took the trouble to spread the news about the law.

The confusion arose in the first place only because legislators left the crime-against-nature statute on the books notwithstanding the Supreme Court decision that rendered it unenforceable. Do not accuse them of dumb oversight, however. They are this way on purpose. Even today, the odds are against repeal.

Legislators showed they had no intention of striking the law in 2010, being content to tinker with section that was unaffected by the Supreme Court decision. Until then the five-year sentence prescribed by the crime-against-nature law also applied to solicitation, whereas offering to sell straight sex carried only six months. Legislators decided that not only gays but hookers offering oral sex were entitled to equal treatment, and now it’s six months max all round.

The new section still refers to “crime against nature,” however. Louisiana’s reaction to the Supreme Court ruling was to pretend it didn’t happen.

And so it continues. Various legislators suggest that repealing the law would go against their constituents’ principles.

Perhaps it is calumny to suggest Louisiana voters champion a law that has served only to waste law enforcement money and manpower while inflicting embarrassment and distress on the innocent. That would certainly be some stupid. Legislators aren’t about to take a chance, however.

Removing the law from the books would make no difference at this stage anyway. Now that Gautreaux has been pilloried from coast to coast, nobody else would dare make an arrest under it.

Even before the statute was thrown out, the tactics adopted by Gauteaux’ deputies would surely have raised eyebrows. Dispatched to Manchac Park, long a popular gay hangout, they would proposition a likely candidate, arrange a rendezvous on private premises later and haul him off to the slammer when he arrived. That sounds like entrapment, but the issue is now academic.

As recently as July 18, a backup team had a tape running while a deputy tempted a cruising gay with an offer of “some drinks and some fun” in a nearby apartment

Instead he found himself in handcuffs. The criminal classes of Baton Rouge, meanwhile, were probably having plenty of drinks and fun.

James Gill can be contacted at jgill@theadvocate.com.