Brian Lyman

Montgomery Advertiser

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.

The case involved Dewayne Williams who was accused of sexually assaulting a hotel clerk in 2010. Williams, who said the sex was consensual, was charged with first-degree sodomy, which carries a sentence of no less than 10 years in prison. However, a Dallas County jury convicted Williams of the lesser charge of sexual misconduct, a Class A misdemeanor punishable by up to a year in jail. As defined in state law, sexual misconduct included bans on oral and anal sex, as well as a line saying consent was not a defense. However, the U.S. Supreme Court ruled in Lawrence v. Texas in 2003 that such laws banning consensual sex were unconstitutional.

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.

"Our position was that the court could fix this law and hold it to be constitutional in the way courts do in all sorts of constitutional cases, where parts of the law are unconstitutional, but rest of the statute can be saved," said Andrew Brasher, Alabama's Solicitor General.

The appeals court, however, rejected the proposal, saying it could only interpret the law, not amend it, and that ordering a new trial could violate Williams' constitutional protections against double jeopardy and ex post facto laws.

Sexual crimes have specific definitions. Under Alabama law, sexual misconduct is defined as sexual intercourse where one of the individuals involved does not give consent. Rape is is defined as sexual intercourse involving forcible compulsion, minors or those who are physically or mentally incapacitated.

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.

Ben Cooper, chairman of Equality Alabama, which advocates for gay and lesbian rights, said in a statement the group was "excited" by the court's decision last week to strike down the ban on consensual sex.

"We do hope, however, that if there is any ambiguity between consensual and non-consensual sex that stems from the Williams ruling, that Attorney General Strange and our state's courts will act to ensure victims of non-consensual sex are protected to the fullest extent," he said.