WriterDom
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Miami Herald-Sunday, August 06 1989
Hard-time convicts in the prison yard derive no end of fun comparing their particular crimes to the transgression that landed James David Moseley behind bars 17 months ago.
Moseley, in the midst of a five-year sentence at a state prison outside Atlanta, is doing time for committing oral sex. With his wife.
"The other prisoners, some of them murderers and such, burst out laughing," said Clive Stafford-Smith of the Southern Prisoners Defense Committee. "Jim is bemused himself. Here he is languishing in jail for a crime that millions of Americans commit daily. Or perhaps nightly." Moseley, 34, a carpenter from the Atlanta suburb of Jonesboro, was convicted under Georgia's 156-year-old sodomy statute last year after admitting in court that he had had oral sex with his estranged wife, Bette Roberts.
Oral sex, even with a spouse, is a felony in Georgia. And the crime is considered so serious that the state Parole and Pardons Board has ruled that Moseley must serve at least two years of his five-year sentence. Sodomy is so serious that the board decided to keep Moseley incarcerated even as it is forced to prematurely release 3,000 convicted felons from jammed prisons to avoid a federal overcrowding lawsuit.
Stafford-Smith, whose legal pursuits are usually confined to death penalty cases, appealed the Moseley case in state Superior Court last week, attacking the sodomy law on a number of constitutional grounds ranging from invasion of privacy to cruel and unusual punishment.
Stafford-Smith said 25 states -- Florida is one -- have sodomy laws, but the laws, if enforced at all, are usually tacked onto charges of child sex abuse. Sodomy charges involving a consenting married couple are rare, perhaps unprecedented.
Moseley 's conviction grew out of a dispute with Roberts, now his ex-wife, the mother of their two children, ages 2 and 3. In February 1988, after Moseley had visited his estranged wife's home, she filed a sexual assault complaint. He was arrested on two counts of rape, two counts of aggravated oral sodomy and two counts of aggravated anal sodomy.
(Aggravated, under Georgia law, indicates that the act was forced.)
Moseley has been in jail since.
But at his trial three months later, the jury did not believe his wife, whose own sister testified that her motives were vengeful and designed to head off a custody fight over the couple's young boys.
The jury found Moseley not guilty on the assault charges. But in the course of his testimony, the defendant admitted he had had oral sex with his wife -- although, he said, it was with her consent.
Both the prosecutor and the defense lawyer ignored the admission in their final arguments. In his charge to the jury, though, Superior Court Judge William Ison, known at the Clayton County courthouse as "Iceman," told the jurors that consensual oral sex was simple sodomy and a crime under Georgia law.
Moseley, who said he had no idea oral sex was a crime, was convicted.
His attorney, Steven Lister, said he advised his client not to appeal. "I told him he couldn't be considered for parole as long as the case was appealed and . . . he would probably be out in four or five months."
"The big surprise was the Pardons and Parole Board," Lister said. "They said he must serve at least two years. It's pretty unbelievable."
"I suppose the recidivism rate is rather high," Stafford-Smith said acidly of the board's policy, which puts simple sodomy on the same level as rape.
Silas Moore, a spokesman for the Board of Pardons and Paroles, said the board can use information, including hearsay statements, inadmissible in a trial in deciding how much of a sentence a particular prisoner must serve. Moore wouldn't say what particular criteria the board used in the Moseley case.
Moseley had a previous conviction -- a misdemeanor drug charge for attempting to have his exhausted painkiller prescription refilled. His record, Stafford-Smith points out, also includes a Navy heroism citation for saving the life of a fellow seaman while serving aboard the aircraft carrier USS Roosevelt.
The sodomy statute under which Moseley was convicted survived a U.S. Supreme Court challenge in 1986, when the justices voted 5-4 to uphold the conviction of an Atlanta homosexual charged with sodomy after a police officer serving a warrant discovered him in a sexual act.
But since then, Georgia Attorney General Mike Bowers has said he has doubts that he could successfully defend the same law if it were applied to consenting, married adults.
"I'm not changing what I've said in the past," Bowers said last week. But he declined to make any direct comment on the Moseley case, which is set for a hearing Aug. 16.
"Bowers will need virgins to try this case," Stafford-Smith said. "I personally don't think any of his lawyers wants to litigate a case if they've been guilty of the crime."
Miami Herald-Sunday, August 06 1989
Hard-time convicts in the prison yard derive no end of fun comparing their particular crimes to the transgression that landed James David Moseley behind bars 17 months ago.
Moseley, in the midst of a five-year sentence at a state prison outside Atlanta, is doing time for committing oral sex. With his wife.
"The other prisoners, some of them murderers and such, burst out laughing," said Clive Stafford-Smith of the Southern Prisoners Defense Committee. "Jim is bemused himself. Here he is languishing in jail for a crime that millions of Americans commit daily. Or perhaps nightly." Moseley, 34, a carpenter from the Atlanta suburb of Jonesboro, was convicted under Georgia's 156-year-old sodomy statute last year after admitting in court that he had had oral sex with his estranged wife, Bette Roberts.
Oral sex, even with a spouse, is a felony in Georgia. And the crime is considered so serious that the state Parole and Pardons Board has ruled that Moseley must serve at least two years of his five-year sentence. Sodomy is so serious that the board decided to keep Moseley incarcerated even as it is forced to prematurely release 3,000 convicted felons from jammed prisons to avoid a federal overcrowding lawsuit.
Stafford-Smith, whose legal pursuits are usually confined to death penalty cases, appealed the Moseley case in state Superior Court last week, attacking the sodomy law on a number of constitutional grounds ranging from invasion of privacy to cruel and unusual punishment.
Stafford-Smith said 25 states -- Florida is one -- have sodomy laws, but the laws, if enforced at all, are usually tacked onto charges of child sex abuse. Sodomy charges involving a consenting married couple are rare, perhaps unprecedented.
Moseley 's conviction grew out of a dispute with Roberts, now his ex-wife, the mother of their two children, ages 2 and 3. In February 1988, after Moseley had visited his estranged wife's home, she filed a sexual assault complaint. He was arrested on two counts of rape, two counts of aggravated oral sodomy and two counts of aggravated anal sodomy.
(Aggravated, under Georgia law, indicates that the act was forced.)
Moseley has been in jail since.
But at his trial three months later, the jury did not believe his wife, whose own sister testified that her motives were vengeful and designed to head off a custody fight over the couple's young boys.
The jury found Moseley not guilty on the assault charges. But in the course of his testimony, the defendant admitted he had had oral sex with his wife -- although, he said, it was with her consent.
Both the prosecutor and the defense lawyer ignored the admission in their final arguments. In his charge to the jury, though, Superior Court Judge William Ison, known at the Clayton County courthouse as "Iceman," told the jurors that consensual oral sex was simple sodomy and a crime under Georgia law.
Moseley, who said he had no idea oral sex was a crime, was convicted.
His attorney, Steven Lister, said he advised his client not to appeal. "I told him he couldn't be considered for parole as long as the case was appealed and . . . he would probably be out in four or five months."
"The big surprise was the Pardons and Parole Board," Lister said. "They said he must serve at least two years. It's pretty unbelievable."
"I suppose the recidivism rate is rather high," Stafford-Smith said acidly of the board's policy, which puts simple sodomy on the same level as rape.
Silas Moore, a spokesman for the Board of Pardons and Paroles, said the board can use information, including hearsay statements, inadmissible in a trial in deciding how much of a sentence a particular prisoner must serve. Moore wouldn't say what particular criteria the board used in the Moseley case.
Moseley had a previous conviction -- a misdemeanor drug charge for attempting to have his exhausted painkiller prescription refilled. His record, Stafford-Smith points out, also includes a Navy heroism citation for saving the life of a fellow seaman while serving aboard the aircraft carrier USS Roosevelt.
The sodomy statute under which Moseley was convicted survived a U.S. Supreme Court challenge in 1986, when the justices voted 5-4 to uphold the conviction of an Atlanta homosexual charged with sodomy after a police officer serving a warrant discovered him in a sexual act.
But since then, Georgia Attorney General Mike Bowers has said he has doubts that he could successfully defend the same law if it were applied to consenting, married adults.
"I'm not changing what I've said in the past," Bowers said last week. But he declined to make any direct comment on the Moseley case, which is set for a hearing Aug. 16.
"Bowers will need virgins to try this case," Stafford-Smith said. "I personally don't think any of his lawyers wants to litigate a case if they've been guilty of the crime."
