Cite as 349 Ark. 600 (2002)
Nonetheless, appellant in the case now before us contends that, because Arkansas's sodomy staiute has never been enforced against consenting adults, appellees have shown no threat of prosecution under the statute. Appellees have admitted to presently engaging in conduct that is violative of Ark. Code Ann. § 5-14-122. Thus, according to the statute, appellees are presently engaging in criminal conduct. Appellant suggests that appellees are not harmed by the statute because it has not been enforced for private, consensual conduct in over fifty years. However, Arkansas's present sodomy statute was enacted in 1977, just twenty-five years ago. In the past decade, three different attempts to repeal the statute have failed, sending a signal to prosecutors of the statute's continuing vitality.[1] The State has refused to disavow enforcement of the statute and is, in fact, vigorously defending the legality of the statute in the present action. In addition, albeit for public or nonconsensual conduct, there have been prosecutions under Arkansas's sodomy statute as recently as 1988. See, e.g., Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988) (conviction for nonconsensual sodomy under Ark. Code Ann. § 5-14-122); United States v. Lemons, 697 F.2d 832 (8th Cir. 1983) (conviction under Ark. Code Ann. § 5-14-122 for consensual conduct in a public restroom). In addition, our sodomy statute has been used outside the criminal context in ways harmful to those who engage in same-sex conduct prohibited by the statute. See, e.g., Stowe v. Bowlin, 259 Ark. 221, 531 S.W.2d 955 (1976) (holding that court should have allowed appellant to impeach appellee's credibility as a witness by referencing appellee's admitted engagement in sodomy); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987) (affirming chancellor's consideration of appellant's homosexuality as a relevant factor in depriving her of the custody of her children).
[13] Clearly this statute is not moribund, and the State has not foresworn enforcement of it. Appellees are precisely the indi-
- ↑ The appellees' petition for declaratory judgment states that a bill to repeal the challenged portion of the statute was sponsored in 1991 by former Senator Vic Snyder but received a "do not pass" recommendation by the Arkansas General Assembly's Judiciary Committee, and the "bill died on calendar." Similar bills "died in the Judiciary Committee" in 1993 and 1995.
