Raleigh police are charging two adults for sodomy in private, although the U.S. Supreme Court appears to have outlawed such charges five years ago.
Police on Saturday charged two West Raleigh men with a "crime against nature" for having sex early that morning. Each faces up to two years in prison if convicted of the Class I felony.
But that charge is unconstitutional, a state lawmaker says.
And the circumstances of the encounter are murky.
Raleigh police first charged Nelson Keith Sloan, 40, of Grand Manor Court, who called them to his apartment about dawn, saying he had been attacked.
Police later filed the same charge against Ryan Christopher Flynn, 25, of Glen Currin Drive.
They also charged Flynn with simple assault for biting Sloan. And they charged him with communicating threats by telling Sloan he was going to disembowel him and show him his innards.
"This looks like a case of a consensual act that may have gotten out of hand," said Raleigh police Capt. T.D. Hardy. "The law is still on the books. Our detectives got involved in it last night and decided this was the best thing to do. What the D.A.'s office will do with it, I don't know."
Sloan, however, said he was the victim of an assault.
"I didn't allow anything," he said Saturday after being reached at home by phone. "They knew it and turned it around and arrested me. I have never been so humiliated in all my life. It's just awful."
Police did not charge Flynn with any sort of sexual assault.
Flynn, who has past misdemeanor convictions for possession of drug paraphernalia and assault by pointing a gun, could not be reached for comment.
North Carolina's "crime against nature" law doesn't apply only to same-sex partners. But a landmark 2003 U.S. Supreme Court ruling appears to forbid states from treating private, consensual, adult sex as crimes.
"The petitioners are entitled to respect for their private lives," the high court ruled in the case Lawrence v. Texas. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
Two months later, the Raleigh Police Department's attorney, Dawn Bryant, told officers they could keep charging people with crimes against nature for committing the acts in public places -- but not in private.
"We're following constitutional law," Bryant said then. "The [Supreme Court's] decision only applies to private conduct."
Bryant could not be reached Saturday for comment. Nor could Wake County's district attorney, Colon Willoughby.
Some district attorneys have stopped prosecuting the crime, but sometimes police rely on it to prosecute public sex, same-sex prostitution and opposite-sex prostitution involving oral sex.
State Sen. Ellie Kinnaird, a Carrboro Democrat and attorney, has tried for years to rescind the state statute, but the General Assembly hasn't been willing to do it.
"I press it every year," she said Saturday. "It would be politically difficult, but that doesn't matter -- it's unconstitutional."
Sloan, who had to post a $3,000 bond Saturday to get out of jail, is due in Wake County District Court on Tuesday.
Flynn, who posted a $4,500 bail bond, is due in court July 18.
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