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Challenge to Utah sodomy law dismissed

The Utah Court of Appeals has dismissed a challenge to Utah's sodomy law, saying a Utah County man lacks any real damages from his fear of being prosecuted.

In an opinion issued Thursday, the appellate court found that a man, named only as D. Berg, could not justify his "fear" of being prosecuted for having heterosexual sex outside of marriage because Berg was never charged with sodomy.

Associate presiding Justice Russell Bench wrote that that fact, combined with Utah Attorney General Mark Shurtleff's pledge to not use the law to prosecute, shows that Berg does not face a future threat of being prosecuted.

Berg's attorney, Brian Barnard, claims that Utah's sodomy and fornication statutes are clearly unconstitutional, given the recent U.S. Supreme Court ruling in Lawrence vs. Texas where a similar Texas sodomy law was struck down.

Representatives for the Utah attorney general have argued that Shurtleff has indicated that he would not use the sodomy statute to prosecute, nor would he encourage any county prosecutor in the state to use the law.

Barnard cited two unrelated cases in which two men were charged with sodomy. The appellate justices noted that in the cited cases, the sodomy charges were brought amid allegations of rape or consensual sex with a minor. Bench noted that Berg was not involved in either of those situations, thus making his prosecution unlikely.

Also influencing the court's decision was Shurtleff's pledge: "The Attorney General has promised to advise prosecutors not to file sodomy and fornication charges against individuals like Berg. We find this promise significant given the Attorney General's authority" over district and county attorneys.

The court upheld a lower district court's dismissal of Berg's case.

"I think they're wrong," Barnard told the Deseret Morning News shortly after the release of the decision. "Their decision leaves people in limbo."

Finding that Berg lacked legal standing to bring his challenge is simply the appellate court's way of skirting a controversial issue, Barnard said. The high court did not have to look into the argument that the law is unconstitutional.

"They could have easily found that he had standing," Barnard said. "It's troublesome that the high court won't take on an important issue like this."

Shurtleff has indicated that Utah's high courts, the appellate court and the Supreme Court, should not be expected to strike down the laws, saying it is the duty of the Utah Legislature to repeal laws.

Barnard said he doubts the Legislature will repeal the sodomy law any time soon in spite of the U.S. Supreme Court ruling.

Bench did write that the court will await a more appropriate representative to raise these concerns, but "the rare instances where prosecutors have used the statutes do not suggest the presence of a widespread problem requiring judicial intervention in this case."