Expunging 'Sodomy' Act Conviction In Tennessee Relied On Legal Ingenuity Some unlikely allies in Nashville have united to expunge the record of a man convicted of a so-called "sodomy" law in 1995. His record has been cleared, but charges against 41 men have come to light.
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How Nashville Man Cleared Of 'Homosexual Acts' Conviction Paves The Way

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How Nashville Man Cleared Of 'Homosexual Acts' Conviction Paves The Way

How Nashville Man Cleared Of 'Homosexual Acts' Conviction Paves The Way

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STEVE INSKEEP, HOST:

Now, for much of the history of this country, laws banning gay sex were on the books in many states. Even after the Supreme Court struck down those laws, many convictions still remain on people's records. Tony Gonzalez of member station WPLN reports on an effort to clear some of those records.

TONY GONZALEZ, BYLINE: The day the Supreme Court ruling came down in March, 2003, it led the evening news, like this from NBC.

(SOUNDBITE OF NBC BROADCAST)

UNIDENTIFIED REPORTER: At rallies across the nation, gay rights advocates celebrated their legal victory, a ruling so broad, it surprised even many of them.

GONZALEZ: The court struck down state laws that made homosexual conduct a crime. And overnight, prosecutions under so-called sodomy laws ended. But for some, the decision came too late. Their charges were logged in court files and subject to background searches. That's what brought a Nashville man this summer to seek out attorney Daniel Horwitz. The man sought expungement, the clearing of his record.

DANIEL HORWITZ: There was a conviction on there. And that conviction, once I - once I pulled the file, was a 1995 misdemeanor conviction for homosexual acts.

GONZALEZ: He'd not seen such a case, was surprised to find one from the mid-90s, just one year before Tennessee ended its Homosexual Practices Act.

HORWITZ: It's extraordinary to most people that these prosecutions even occurred at all. But this gentleman had a problem.

GONZALEZ: The man seeking expungement was issued a citation 21 years ago for something that took place in his apartment. He went to court, pleaded guilty. Now he has identified only as John Doe for fear of being outed. He declined to be interviewed.

HORWITZ: As most people know, criminal convictions follow you. And lots of people will not hire you if you have them. Somebody pulls a criminal background check and it doesn't come back completely clean, people are often ineligible for housing, ineligible for employment and discriminated against in all sorts of areas of civic life.

GONZALEZ: For Horwitz, expungements are routine - but not this one. The passage of so much time seemingly left no legal path. The fact the Supreme Court had struck down sodomy laws was not enough.

HORWITZ: So we had to, you know, dust off the textbooks and find a new way to move forward here.

GONZALEZ: His aha moment was hitting on an old common law doctrine that hadn't been used in a Tennessee courtroom in at least a century. With finesse, it got his case to a judge. Where he next found help was also unexpected.

GLENN FUNK: Glenn Funk, the district attorney for Nashville, Davidson County.

GONZALEZ: The top city prosecutor, whose team handles 100,000 criminal cases a year, isn't inclined to worry about old convictions. But he was struck by what he calls the ingenious approach by Horwitz and a different type of conviction, a moral one.

FUNK: I do not believe that people should be punished in a criminal prosecution based on - based on the way they were born.

GONZALEZ: The prosecutor joined the filing in favor of expungement.

FUNK: In 1995, the police department was enforcing a law that had been enacted by the Tennessee Legislature. In 2016, we have the opportunity to correct a wrong. And we're doing that.

GONZALEZ: As of this month, the court clerk is shredding John Doe's records and clearing them from an online database. However, charges against an additional 41 men have come to light. The prosecutor says he alone can't clear their names. But the unusual legal path to do so is now established. For NPR News, I'm Tony Gonzalez in Nashville.

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