Penal Dysfunction


Eileen Smith

In Texas, there’s nothing inherently offensive about homosexuals, unless they engage in “homosexual conduct,” in which case they should be arrested. Not that conducting yourself in a homosexual manner is still an actual criminal offense—but it’s still listed as one under the state’s archaic penal code.

According to Section 21.06 of the Texas Penal Code, anyone engaging in “deviate sexual intercourse with another individual of the same sex” would be subject to a Class C misdemeanor and up to a $500 fine. The general definition of deviates includes homosexuals, fetishists, perverts, sadomasochists, nymphomaniacs, pedophiles and miscreants. Texas Republicans made sure to reaffirm their strong belief that homosexuality should be criminalized in their 2010 party platform, based on the fact that it “tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous communicable diseases.” Yes, it appears, homosexuality is catching.

Although the sodomy law was overturned as unconstitutional eight years ago by the U.S. Supreme Court (Lawrence v. Texas), it remains on the books. The Legislature could decide to remove it, but that would mean less time to beat up on women, the elderly, immigrants, high-school teachers, nursing-home residents, and the poor and downtrodden. You have to choose your battles.

Two Houston Democrats, Rep. Jessica Farrar and Rep. Garnet Coleman, filed identical bills this session (HB 604 and HB 2156) that would remove the impotent “homosexual conduct” clause from the penal code, and repeal outdated language from the health and safety code stating that homosexual conduct is not an “acceptable lifestyle.” Lawmakers in states including Kansas, Montana and Oklahoma have also refused to take their sodomy laws off the books.

Michael Diviesti, state leader for GetEQUAL TX, says that on the surface, removing “homosexual conduct” from the penal code is the right thing to do since it’s no longer enforced. But it’s more than that. “We’re hearing legislators say horrible things about us to defend keeping this on the books,” Diviesti says. “For them it’s just a matter of principle, or what their constituents want. I don’t think they’re really listening to their constituents.” Despite the fact that being a practicing homosexual is no longer a crime, the very fact that it’s still on the books—and being debated— is discriminatory.

Rep. Wayne Christian, R-Center, a member of the House Committee on Jurisprudence, told The Austin American-Statesman that he would be “hesitant to do any changing” of the penal code this session, adding that it “better reflects the views of a lot of citizens” as it is now. However a statewide poll conducted last year by Equality Texas found that a vast majority of Texans support equal treatment for lesbian and gay families and prohibiting discrimination based on sexual orientation and gender identity. But since conservative legislators like Christian believe that homosexuality is an unacceptable and immoral lifestyle, they’ve buried the bills in committee.

“These people think more about my sex life than I do,” Diviesti says. “For me it’s not about sex. It’s about love, it’s about relationships, it’s about being treated the same as heterosexual couples.”

Imagine that.