Taking the Fifth to Avoid Questions About Being Gay

This article originally appeared in the Dallas Observer under the headline "Sex and the law: Denton murder trial testimony raises issue of sodomy and the Fifth Amendment."

The authors of the Texas sodomy law in 1941 undoubtedly had several things in mind regarding same-sex relations. Giving gays and lesbians privacy on the witness stand probably wasn't one of them, but a Lewisville man was afforded just that in a Denton courtroom last June 20 when asked about a past homosexual relationship.

The issue arose during the four-day murder trial of Edward Garner Roberson, who was sentenced to life in prison June 21 for the November 1, 1990, murder of long-time University of North Texas marketing professor Jack Starling. Eric Knapp, subpoenaed by defense attorney Ricky Perritt in the murder trial, was asked if he is gay or if the victim was. Knapp, who lived with Starling for eight years, exercised his Fifth Amendment right against self-incrimination and did not answer.

Perritt says he asked the questions of Knapp to corroborate Roberson's claim of self-defense. After his arrest, Roberson told police Starling made sexual advances toward him, attacked wit a knife after the passes were rebuffed, and then was killed in an ensuing altercation. "If, in fact, Jack Starling was homosexual, it would lend credence to Roberson's statement about homosexual advances."

Prosecutors fought throughout the trial to keep testimony about Starling's sexuality away from the jury on the grounds that it was irrelevant. When contacted after the trial, Knapp did not want to discuss his testimony.

"He felt like some of the things [he said] would have been in violation of the homosexual conduct statute," says co-prosecutor Jim Crouch of the Denton County District Attorney's office. Prosecutors did not support a defense request to grant Knapp immunity from prosecution under the Texas sodomy law.

Section 2106 of the Texas Penal Code makes sodomy between members of the same sex a Class C misdemeanor punishable by a $200 fine. The embattled law, one of seven in the nation which apply only to gays, was ruled unconstitutional by a state district judge in December and is expected to reach an appellate court during the fall. On a national level, the U.S. Supreme Court upheld a Georgia sodomy law in 1986.

The state decided not to offer Knapp immunity from prosecution even though two prior witnesses were given immunity for drug use on the night of Starling's death. Crouch says Knapp was not granted immunity because it would only cover Denton County and no other counties which his testimony might mention. Perritt says the real reason was to quash information about Starling's sexuality, and he also questions Knapp's use of the Fifth Amendment involving Starling. "I don't think you can take the Fifth as to whether someone is a homosexual," he says. "I don't think it incriminates you." The conviction will be appealled.

The issue of how the Texas law applies to court testimony was a new one to several people who deal with homosexual legal issues. "You can't be prosecuted for talking about it; it only works if they catch you in the act," says Margaret Tucker, a project coordinator with the Texas Human Rights Foundation, which specializes in gay issues and AIDS projects. Crouch disagrees, though he did say that prosecution based on witness testimony regarding homosexuality is highly unlikely, and to his knowledge, Denton County has never pursued a sodomy case.

Patrick Wiseman, an Austin attorney who represented the plaintiffs in the Morales et al. v. Texas case challenging the Texas sodomy law, says he is unaware of instances similar to the one in Denton. "It's a one in a million deal," he says. "For one thing, how often is your sexual orientation relevant in a case?" When it is, Wiseman says the sodomy law creates an interesting conundrum for the courts. "You could call a woman on the stand and ask her if she engaged in oral sex with a man ... and she could be compelled to testify or be held in contempt of court." Because of 2106, "She could take the Fifth if it was with a woman," he says.

Wiseman characterizes the Denton situation as an oddity, but if the sodomy law survives the Morales challenge, he says it will be a tempting stratagem in more cases concerning homosexuality. "To the extend that more and more people are being more and more open in their lifestyles, it's going to occur to the prosecution and defense more often to use this."

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