The difference in charges had no practical effect on Rowe's punishment. Both are Class B misdemeanors, which carry penalties of up to six months in jail.
But because the Johnson County District Attorney's office prosecuted him under the sodomy law, Rowe believes he has a case worth challenging. That law applies to gay couples -- and only gay couples -- whether they are having an anonymous tryst in a park bathroom or making love in their own bedrooms.
Rowe argues that singling out gays for special prosecution violates the 14th Amendment of the U.S. Constitution, which says that no state can "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Rowe's attorney, Darrell Smith, submitted an appeal to the Kansas Court of Appeals this past September, emphasizing in his brief that "Kansas has no legitimate interest in channeling the majority's animosity for the homosexual community into criminal sanctions for simply being homosexual."
But the three-judge panel disagreed, ruling on December 6 that homosexuals could be treated differently from heterosexuals because they are not a "suspect or quasi-suspect class under the Kansas Constitution."
Smith laughs at the thought. "That's their take on it," he summarizes. "Homosexuals are not a group."If homosexuals were a suspect class -- a status granted based on race, for example -- the state would have to prove that discriminating against them serves "a compelling governmental interest." If they're not a suspect class, though, it's easier for the state to show that the law has "a rational relationship to a legitimate objective." The appellate court apparently agreed with the lower court's opinion that the sodomy statute "advanced the government's legitimate interest of promoting morality and suppressing AIDS."
Rowe disagrees and wants to press his case. He thinks he has a good argument, one that will emasculate the law under which anal and oral sex are fine for married couples, eighteen-year-old boys and geriatric widows, or any other male-female coupling -- but not for gays and lesbians.The last year sodomy was illegal in every state was 1951. By 1986, 26 states had repealed their sodomy laws. Although oral and anal sex are still forbidden in thirteen states, only four of them -- Kansas, Missouri, Texas and Oklahoma -- make a clear distinction between heterosexual and homosexual sodomy.
Arkansas was the most recent convert. In July 2002, its Supreme Court ruled in favor of seven gay men and lesbians who had filed a lawsuit to overturn the sodomy law.
"It's one thing to be behind the curve. It's another to be behind the curve and behind Arkansas," Smith says of the Kansas and Missouri laws.
If Smith will cut him a deal on his mounting legal fees, Rowe is willing to pursue his own case as far as it takes to make the point.
If he wins, it's not going to return the 75 days he spent in jail. It's not going to salve the embarrassment he felt at having the details of his park dalliance publicized.
"I've served my time and I've served my probation, and there's nothing that can be done about me. I don't want this hanging over the heads of my brothers and sisters in the community," Rowe says.
Much is at stake. If the Kansas Supreme Court hears Rowe's case and upholds the appellate court's decision, it could conceivably open the door for discrimination against homosexuals, Smith says.
"If homosexuals are not a group, not a class, not a suspect class, doesn't that mean it is perfectly fine to discriminate against them in employment?" Smith asks. "Doesn't that mean they should not be allowed to adopt children because they are committing criminal conduct in their home? If the Supreme Court adopts their stance, doesn't that leave us with that potential ripple effect?"
The 55-year-old Rowe spent most of his life deeply closeted. In the 1960s and '70s, parks were among the few places men could meet other men interested in homosexual encounters. Rowe, who grew up in Kansas City, Kansas, admits he was a frequent visitor to the Liberty Memorial, Penn Valley Park, Rosedale Park, Shawnee Mission Park and Antioch Park.
Rowe had, in fact, already been convicted of lewd and lascivious behavior, having shown his penis to an undercover cop at another park bathroom on June 23, 2000.
As the Pitch noted in a 2001 story, Rowe isn't necessarily the model citizen gay-rights advocates might have hoped for to make their case ("Unprotected Sex," December 6, 2001).
The same could be said about the people busted in a porn emporium outside St. Louis, who may end up overturning Missouri's sodomy law. Among them are a man and a woman who are married.
Award Video wasn't the kind of place people patronized with pride. Open for more than a dozen years, the porn house in High Ridge, a town on the southwestern edge of St. Louis, catered to the raw side of human sexuality, drawing customers who tended to park their cars in back and occasional picketers who insisted the place was a breeding ground for rapists and child molesters.
The front was a run-of-the-mill sex shop, featuring videos, magazines, blow-up dolls, lotions, leather and various rubber gadgets. More adventuresome patrons went straight to the back.
There, for a $5 minimum, customers could cruise between private video-viewing booths equipped with locking doors -- the more money they paid, the longer they could stay. Others watched porn videos on a big-screen television in a nearby room; an $8 ticket was good for eight hours. A similar room in the basement was reserved for couples.
Management billed the rooms as theaters, but there was a lot more than watching going on.
The theaters and booths were places to have sex. The sparse décor -- and semen stains -- reflected the purpose. Each booth held a paper-towel dispenser, a plastic chair and a trash can. The theaters were equipped with little more than benches and wastebaskets.
Award Video was open 24 hours a day, seven days a week. And on March 13, 2002, there was plenty of action.
About twenty people were in the store just before 10 p.m. that Wednesday night. The basement theater was empty, but at least eight people had gathered in the 10-foot-by-20-foot ground-floor room. Four men stood in a semicircle around a woman, who performed oral sex and masturbated them. She was blond and looked to be in her late twenties. Attractive. Call her Lori.
"We were just playing around and having fun," she says, speaking on the condition that her name not be published.
One of the men gathered around Lori that night was her husband. Tall and rugged, Glenn -- also a pseudonym -- looks a bit like Sam Elliott. Married a little more than a year ago, the couple appears very much in love, often holding hands while discussing a night they'd rather forget. He has her name tattooed on his chest. "We're open-minded," Glenn explains, leaving the rest to the imagination. "We like to meet people."
Glenn and Lori had driven more than an hour from a small town two counties away to reach Award Video, which they'd discovered through an advertisement in a swingers' magazine. There was nothing like it where they lived. This was their fourth visit. Fueled by a shared half-pint of vodka, they were more than ready to roll.
The men in the theater didn't limit their attention to Lori. As time passed, the men began masturbating and fellating each other. Then two men walked in. Almost immediately, Glenn sensed that something was wrong.
"They looked aggressive and hostile," Glenn recalls. "I thought they might be queer-bashers." He was worried enough to leave the party. "As soon as they came in, [Glenn] got weirded out and said, 'Let's go,'" Lori says. The couple retreated to a bathroom.
The newcomers surveyed the theater, taking mental notes that would later appear in police reports, court documents and news broadcasts. They were undercover officers with the Jefferson County Sheriff's Department, and they had arrived to shut down Award Video. While Glenn and Lori washed up, the officers moved to a booth, where they called a waiting raid team that normally served drug-search warrants. This would be a by-the-book operation.
Surprise was easy; Award Video had no windows. The only warning came when Bill (who asked that his real name not be published), an Award clerk who had stopped by as a patron on his day off, glanced at a surveillance monitor behind the front counter and spotted someone outside running toward the door. He looked like just another horny guy.
"I was talking to the clerk on duty," Bill recalls. "I went, 'I guess this guy's really in a hurry to get in here' -- those were my exact words. So [the other clerk] started laughing: 'Yeah, they're always in a hurry.'"
No one could just walk into Award Video. Rather, customers were required to present identification and buy $1 membership cards before a clerk buzzed them into the store from an alcove. Because the other clerk was busy, Bill went to the alcove window to make the appropriate checks. "I opened the window, and the next thing I know there's a gun and a badge and a gray-haired man with very piercing blue eyes and a very pissed-off look on his face saying, 'Open the door or I'm going to kick it down,'" Bill says.
At least nine cops swarmed through the building, guns drawn, ordering everyone to hit the floor. The memory draws a wry smile from Bill. "We tried to keep that place clean, but with as much traffic that came in, the last place you want your face is on the floor of an adult-video store," he says. "They immediately cuffed us and told us to lay on our stomachs."
One by one, the deputies collected identification from the people in the store. They weren't satisfied with Glenn's driver's license. "The cops took my freaking wallet and found pictures of my wife," he says. Lori wasn't wearing clothes in the photographs, which apparently fascinated the deputies. "They started passing around pictures of me -- sexy shots," Lori says. "I felt humiliated, pissed off, embarrassed. I have no problem with my husband having pictures of me, but they're not for everyone.
"It's nobody's business but who we choose," she adds.
As far as Lori and Glenn are concerned, the same rule should apply to what goes on in places such as Award Video. "I don't believe any person on this earth has any right to have an opinion on someone's sexual preferences, as long as it's not a child and you're not hurting anyone," she says.
Not so, says Jefferson County Prosecutor Robert G. Wilkins, who is determined to put a stop to sex in public places, even if it means using one of the most homophobic laws in the nation.
Glenn, Bill and four other men accused of having sex together in the Award Video theater stand charged with first-degree sexual misconduct, a misdemeanor carrying a maximum penalty of a year in jail, plus a huge stigma.
Lori, however, hasn't been charged with a crime, even though she was doing the same things at the same place at the same time as the men who have become reluctant combatants in a fight to legalize homosexuality in Missouri.
Once at the Jefferson County jail, the people who had been arrested were removed from their cells, read their Miranda rights and individually interrogated. The tenor ranged from reassuring to threatening.
"They told me, 'Look, if you cooperate, it will go away,'" Bill recalls. "'We don't want you -- we want the owners. If you don't cooperate, we're going to parade you and your family and everybody through the media and make your life a living hell.'"
Bill confessed, telling the cops everything he had done and seen in the theater. He says he didn't think he had a choice. "They told me they had video evidence, that one of the officers had a digital camera with him at the time," Bill recalls. "If I didn't cooperate with them, they were going to take me into court and put those videos in one after the other and just make me a fool in front of everybody that was there."
Deputies also played tough with Lori, who was on probation for a drug-possession offense. They told her that her probation would be revoked and she'd land in prison if she didn't play ball. The threat worked.
"I was falling apart," Lori recalls. "I'm the only freaking girl there, just bawling. I told them the truth about what we witnessed." The cops pressed for more, telling her that her husband had engaged in anal intercourse and paid for sex. They also accused Lori of being a prostitute, with a pimp for a husband. (Lori's worst fear proved unfounded. Since the raid, she says, the state Department of Corrections has relaxed her probation supervision, and her probation officer has recommended that she be released from probation early.)
The booking charges looked impressive: prostitution, promoting prostitution, drug possession, sexual misconduct.
None of the prostitution cases stuck; there was a lack of evidence.
Despite what deputies might have said during interrogations, no owners were charged. Indeed, Chris Morse -- who managed the business with his wife, Debra -- was among the first released from jail. According to inspection reports from the Jefferson County Health Department, the Morses also owned at least part of Award Video. The drug-possession beefs amounted to two men found with tiny amounts of pot. Both were charged with misdemeanor marijuana possession.
That left the people who were caught with their pants down.
Two weeks after the raid, Wilkins filed charges of sexual misconduct against six men who'd been in the theater. He's almost apologetic.
"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.
"We're trying to make this go away as quietly and as quickly as possible for these people," Wilkins says. "They have to make a choice."
The defendants haven't bitten. All have pleaded not guilty. No trial date has been set.
And a half-dozen guys busted in a dirty bookstore aren't the most respectable poster boys for Missouri's gay community.
"There were some people who were concerned that we shouldn't be linking ourselves or associating ourselves with this," says Jeff Wunrow, executive director of For the Personal Rights of Missourians (PROMO). "Like it or not, these are the sorts of facts that give us the cases we need to prosecute ... I think we can talk about it without condoning or condemning what they did."
Although she calls the defendants "brave" for fighting the charges, there's a difference between the defendants and gays throughout the state who could benefit if the statute is struck down, says Denise D. Lieberman, legal director for the American Civil Liberties Union of Eastern Missouri.
"I'm talking about people who don't set foot in these seedy joints," she says.
Kansas City, Columbia and St. Louis have anti-discrimination ordinances, but homosexuals elsewhere in the state may be denied housing or jobs on the basis of their sexual orientation. Even though no one in Missouri has been prosecuted for having same-gender sex in private, a law decreeing that gay sex is illegal is a big hurdle, Lieberman says. "There's a lot of important reasons for that law to be struck down. It prevents us from enacting other laws promoting equality. It justifies courts' denying custody and parenting rights to gays and lesbians because they're criminals."
As in Missouri, the Kansas sodomy law has evolved over the years.
In 1855, Kansas Territorial Laws called sodomy "a crime against nature," punishable by confinement and hard labor not less than ten years." More than a hundred years later, in 1969, legislators redefined sodomy as "oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal." In 1983, the Kansas Legislature changed the criminal sodomy law, adding the words "members of the same sex."
Activists have made little effort to convince the heavily Republican Kansas Legislature to change or repeal the law. "I don't think anything has been done," says Steve Brown, president of the Kansas Lesbian, Gay, Bisexual and Transgendered Democratic Caucus, a special-interest group lobbying for equal treatment for gays, lesbians, bisexuals and transgendered persons. "Repealing sodomy laws is not high on the Republican agenda."
At the moment, all eyes are on the U.S. Supreme Court, which heard a challenge to Texas' homosexual conduct law and is expected to rule in June. Gay rights advocates hope the court will overturn its 1986 ruling in Bowers v. Hardwick.
Unlike Robert Rowe and the Award Video defendants, Atlanta bartender Michael Hardwick was arrested while having sex in the privacy of his own home.
A police officer had gone to Hardwick's house at 3 a.m. to serve Hardwick with a warrant for drinking in public. Hardwick's roommate opened the door for the officer, who then found Hardwick and another man having oral sex in a bedroom. The officer arrested the two men under Georgia's sodomy law. Hardwick took his case to the U.S. Supreme Court, which ruled against him 5-4.
In a majority opinion written by Justice Byron R. White, the court refused to acknowledge that gay Americans had "a fundamental right to engage in homosexual sodomy." Chief Justice Warren E. Burger added that to rule in Hardwick's favor "would be to cast aside millennia of moral teaching."
Writing for the four dissenters, however, Justice Harry A. Blackmun criticized his colleagues' "almost obsessive focus on homosexual activity" and mentioned another Supreme Court ruling that was overturned within three years.
"I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent," Blackmun wrote.
The ruling mobilized gay activists across the country, who have been doing their best to rewrite state law books. Missouri's PROMO was founded within days of the decision.
The current Texas case is a rerun of Bowers v. Hardwick. Police arrived at John Lawrence's Houston home after a neighbor filed a false report of a domestic disturbance. The officer discovered Lawrence and Tyron Garner having sex, and the men were later convicted of misdemeanors and fined $200 each. They appealed their convictions but were refused by the Texas Supreme Court.
If the U.S. Supreme Court rules against Texas in June, states will be forced to reevaluate their lingering sodomy laws.
Dick Kurtenbach, executive director of the ACLU of Kansas and Western Missouri, says that the court's willingness to take the case bodes well for the defendants. "Unless they want to make things better, they wouldn't take this same issue," Kurtenbach says of the justices.
If the Supreme Court does throw out the Texas law, it could do so with two arguments, Wunrow says. The court might rule based on privacy, saying the state has no business involving itself in what goes on between consenting adults in their own homes. Or it might turn to the concept of equal protection, saying that homosexuals have the same right to oral sex that heterosexuals do.
If the court rules based on equal protection, the states could recriminalize heterosexual sodomy to make things equal.
But that seems far-fetched, even in prudish Missouri and Kansas.
"It is unlikely Kansas and Missouri will criminalize all sexual behavior except the missionary position," says Alex Flemington, president of the Four Freedoms Democratic Club, Kansas City's main political organization for gays and lesbians.
But Wunrow won't rule it out, at least in the governmental halls of Jefferson City. "I'm sure a notion like that would get some votes," he says.
The Jefferson County Sheriff's Department considers its raid on Award Video a success.
"We enforced the law," says Major Mark Tuljetske. He says the cops acted on complaints from citizens who had heard that people were having sex inside the theater. But there has long been evidence that people were having sex inside Award Video and at two other adult businesses in the county with theaters, private booths or both. At the request of the sheriff's department, for example, a Jefferson County health inspector had visited three adult businesses -- including Award Video, Bobbie's Books and Dr. Video, which also has a theater -- in May and June 2000. Shining a black light in the booths and theaters, public-health specialist Joe W. Hainline found semen stains on the floors, walls, chairs and video monitors of theaters in private booths. Despite the findings, no one was arrested until the raid in March 2002. And no one has been arrested since.
On a recent Saturday night at Dr. Video, seven men sat in plastic deck chairs and watched a woman perform oral sex on a man. Her blouse and shorts were unbuttoned; he was fully clothed, with his fly open. The floor was sticky concrete; the walls were easy-to-wipe-clean white tile. Ceiling fixtures emitted plenty of light. The spectators remained silent and clothed. Arms folded, legs crossed, they could have been taking in a Sunday-morning sermon.
The man at the center of attention uttered something about not wanting to climax, and he and his partner left. A few seconds passed, and it became clear that this was not an isolated instance. "They were sure better than the last couple," someone said, prompting a few chuckles and nods. The room fell silent as patrons waited for more live action to begin.
Tuljetske says he isn't surprised that people are still having sex in Jefferson County's adult businesses. Even though the prosecutor says he can't charge heterosexuals who have sex in a setting where no one would be shocked, Tuljetske sees matters differently. He also sees a distinction between group sex and couple sex.
"If you have two people who are consenting adults doing something together, it's different than if you told me that the woman was going from guy to guy to guy," Tuljetske says.
Wouldn't everyone presumably be consenting, though?
"Technically, yes," the major answers. "But there's a thing about the group thing ... in a public place. The consent would not only have to come from everybody involved but everybody witnessing. This is the same deal that we ran into in what used to be Award Video."
The bottom line, Tuljetske says, is that the couple would have been arrested had an officer been present because the officer would not have been a consenting witness. If only men had been involved, Tuljetske says, deputies would have considered more than just consent. "We would look at other issues, health-department violations, things like that," he says.
Four of the people arrested at Award Video have vowed to fight.
"They're the ones who disturbed the peace, not us," Glenn says. He says he will dispute the charges on principle. Although the court record would be closed to the public if he took the prosecutor's deal, what's accessible to the criminal-justice system is a different matter. Glenn says he's worried about how he might be treated if he's ever pulled over by a cop whose routine records check pulls up the arrest. If the defendants take the deal, their chances of getting arrests and convictions completely expunged are nil, says Richard Sindel, attorney for the men who have accepted ACLU representation.
Painful though it may be, they say they'll fight all the way to the U.S. Supreme Court if that's what it takes to make sex between consenting adults, no matter their gender, a legal act.
"I'm not a quitter," says Bill, who ventured into the theater that night and is now charged with having sex with another man. "I was raised to think if you're right, you go for it, no matter what happens."
Robert Rowe feels the same way.
In recent years, Rowe says, he began a twelve-step sexual-addiction treatment program to cure him of his park-sex habit. Now he's trying to avoid liaisons like the one that landed him in jail. "I don't practice the lifestyle I used to," he says.
Georgian Michael Hardwick never was comfortable talking about his Supreme Court celebrity and granted few interviews about his decision to fight. He died in 1991 of an AIDS-related illness.
His nemesis, Michael Bowers, has also been reluctant to rehash their litigation. But his actions speak for him.
In 1991, the Georgia attorney general rescinded a job offer he had made to an Emory University law student when he found out that she and another woman had celebrated a commitment ceremony before a rabbi and their friends and family. He cited Bowers v. Hardwick in saying that to hire a lesbian would violate Georgia's moral standards.
The woman, Robin Shahar, sued him. She lost and exhausted her appeals in 1998 when the U.S. Supreme Court refused to hear her case.
But by then, Bowers had finally experienced defeat of his own.
The Republican gave up his seat as attorney general in 1997 to run for governor of Georgia. But the campaign was doomed from the start when Bowers admitted publicly that he'd had a decade-long affair with a woman who worked in his office.
Kendrick Blackwood contributed to this story.