| Convicted under unconstitutional sodomy laws, they're still fighting for freedom. In 2003, the U.S. Supreme Court ruled that laws criminalizing oral sex and sodomy were unconstitutional. For hundreds of years, these laws had been used to prosecute people for same-sex sexual activity and, less frequently, to prosecute unmarried people for having sex. With the advent of sex offender registries, sodomy convictions could come with not just imprisonment for a discrete time but a lifetime of stigma and foreclosed opportunity. But that's all behind us now, right?
No—as Randall Menges' story makes clear. Montana is fighting to keep Menges on the sex offender registry for gay sexual activity he engaged in nearly 30 years ago.
Now 45, Menges was convicted as a teenager for having consensual sex with two other male teens. Menges was then 18, and they were both 16 (which was then the age of consent in Idaho, where the acts took place). Idaho prosecutors charged him with "crimes against nature," which the state treated as a ban on anal and oral sex. Menges wound up serving seven years in prison for it. Upon release, he was added to Idaho's sex offender registry and, when he moved to Montana, to that state's registry—a designation that has cost him work and friends, he told The New York Times.
Finally, last week, a federal court declared that Menges' punishment is unfair. Menges was on the registry "because he was convicted of engaging in oral or anal sex with a person of the same sex, not because he had oral or anal sex with a minor or because such contact was nonconsensual," wrote U.S. District Judge Dana Christensen. "Under Montana's constitutional scheme, having consensual intimate sexual contact with a person of the same sex does not render someone a public safety threat to the community. Law enforcement has no valid interest in keeping track of such persons' whereabouts."
"In sum, Montana has no rational basis for forcing Menges to register as a sexual offender," wrote Christensen.
"It should not have required a lawsuit to enforce the Supreme Court's command from 18 years ago," said Menges in a statement. "But I'm happy that it's over."
The judge ruled that by this upcoming Friday, "The state of Montana must: Remove Menges from Montana's Sexual or Violent Offender Registry; expunge all records indicating Menges was ever required to register; and alert all agencies, such as courts, police departments, sheriff's departments and the FBI, that Menges' registration information is no longer valid," the Daily Montanan reports.
But Montana Attorney General Austin Knudsen's office said he will appeal the court's ruling. A spokesperson for Knudsen said it "weakens our state's sex-offender registry law, making kids and families less safe."
Yes, in the year 2021, Montana is effectively contending that failing to brand someone who had consensual gay sex as a sex offender is a danger to families and kids.
Of course, prosecutors say that this is simply about process. Since Menges is also challenging Idaho's requirement that people with sodomy convictions register as sex offenders, and that case is ongoing, he has no right to challenge his registration in Montana, state prosecutors argued.
"Montana hasn't enforced its sodomy prohibition since 1997 and even formally repealed it in 2013," notes Menges' lawyer Matthew Strugar. "And Montana never required people convicted under its old sodomy prohibition to register as sex offenders. But Montana does require anyone with a conviction from another state that is registerable in that state to register if they move to Montana. So, despite taking measures to decriminalize gay life in Montana, the state still enforces Idaho's backwards and homophobic treatment of old sodomy convictions"
Menges isn't alone in his struggle. His case "comes amid a larger struggle over laws that have historically been used to discriminate against L.G.B.T.Q. people," notes the Times:
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