Head Cases

"I'm perhaps more offended by the conduct of the woman who was not prosecuted," Wilkins says. "If we could have prosecuted the woman who was there, I would have done it." But state law, the prosecutor says, left him no choice.

There's no outright ban on public sex in Missouri. The law says the conduct must be likely to cause "alarm or affront" -- hardly the case in an establishment at which signs inside and outside make it clear that the business is all about sex. But the law does make gay sex illegal, be it in an adult bookstore or a bedroom. At least, Wilkins thinks so.

In 1986 the state Supreme Court upheld the law, dismissing arguments that it violated equal-protection guarantees. According to its ruling in State of Missouri v. Walsh, criminalizing same-gender sex is fair because the law applies equally to lesbians and male homosexuals. The court also said the law was needed to prevent AIDS from spreading.

"It was a really outrageous decision," says Arlene Zarembka, a St. Louis attorney who argued the case on behalf of the American Civil Liberties Union.

Then the legislature changed the law. Today, the statute is a case of tortured grammar:

"A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing without that person's consent."

Zarembka argues that the phrase without that person's consent must apply to the entire statute, not just to the part about touching someone through his clothes. Otherwise, she says, sex, no matter the circumstances, would be illegal in Missouri.

Previously the ban on gay sex stood alone in a subsection of the sexual-misconduct law, leaving no doubt that homosexuals were criminals. But legislators who were updating sex statutes eliminated the subsections and bunched everything into one sentence. During the same 1994 session (and again in 1998), lawmakers also turned down a proposal to legalize same-sex intercourse.

Only after a 1999 state appeals-court decision did it become clear that lawmakers might have inadvertently legalized homosexual sex. The case that is now cited as a landmark flew under everyone's radar.

The case centered on whether William Henry Cogshell Jr., a Kansas City man convicted of several sexual offenses, was guilty of sexual misconduct for having sex with a thirteen-year-old boy. Cogshell didn't argue that he hadn't committed statutory sodomy, so those two felony convictions stood. But he did appeal two sexual-misconduct convictions, saying he wasn't guilty of those because the boy had consented.

John Munson Morris, the assistant attorney general who handled the case, didn't argue.

"The State agrees that the evidence was insufficient to support the appellant's convictions for sexual misconduct because it did not establish that the sexual contact between the appellant and [the boy] was not consensual," the Western District Court of Appeals ruled in a unanimous decision.

After the ruling, state Attorney General Jay Nixon asked the appeals court to amend the ruling to make it clear that consent didn't apply in cases involving same-gender sex. Nixon said that even though he didn't necessarily agree with the law, it was his job to enforce the legislature's intent, which was to outlaw sex between people of the same gender. But it was too late. The court wouldn't budge, and Nixon didn't risk an appeal to the state Supreme Court, which could have decided the issue once and for all.

Nixon's office declined comment for this story. "We're not going to make any kind of comment on legal strategy that we didn't use on that case," says spokesman Scott Holste.

Jefferson County Prosecutor Wilkins says the defendants crossed a line by having sex in a room where anyone could watch or participate.

"The law is really a privacy issue, and you can't claim privacy if you're doing it in a public place," he says. "Just rent a room, for goodness' sake. Rent a viewing room for a quarter and do it -- they could avoid this by going into a freaking booth at Award Video."

Lori and Glenn say they don't understand Wilkins' logic. After all, passersby couldn't accidentally stumble in -- anyone wishing to enter the theater knew what was going on, and they had to be buzzed in by a clerk after buying a ticket. Plus, the cops busted people throughout the store.

"They're full of crap," Lori says. "They raided the private booths, too."

Wilkins says he's concerned about the public-health implications of anonymous group sex. "In some cases, it's the government's responsibility to protect people in spite of themselves," he says.

Glenn and Lori say that's ridiculous. "Everyone there was wearing a condom," Glenn says.

Wilkins has offered to reduce the charges to peace disturbance with a recommendation for suspended imposition of sentence. That way, the men won't be convicted of sexual offenses, they won't stand trial and their court records won't be open to the public.