Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)



The guarantees of individual liberty provided in the 1891 Kentucky Constitution offer greater protection of the right of privacy than provided by the Federal Constitution as interpreted by the U.S. Supreme Court, and that Ky. Rev. Stat. Ann. § 510.100 is a violation of such rights; and, further, it violates rights of equal protection a guaranteed by the Kentucky Constitution.


Defendant was arrested after he invited an undercover police officer back to his home for sex. He was charged under Ky. Rev. Stat. Ann. § 510.100, which punishes deviate sexual intercourse with another person of the same sex. The statute also provided that consent is not a defense and is punishable regardless if the act is committed in the privacy of one’s home. The statute was challenged for violating defendant’s right to privacy and for being discriminatory against homosexuals.


Is a law proscribing statutorily-defined deviant sexual intercourse unconstitutional for being discriminatory and for violating an individuals right to privacy?




The court held that the statute violated the protections of privacy and equal protection under the Ky. Constitution. The court noted that the protections under the state constitution exceeded those of the federal constitution. Further, an evaluation of state case law revealed a long history recognizing the rights of the individual to be free from government constraint and included the right to live without unwarranted interference by the public. Unlike the federal constitution that limited protection to certain classes, no class of persons could be discriminated against under the Kentucky Constitution. All were entitled to equal treatment unless there was a substantial governmental interest, a rational basis, for different treatment. The court looked to the evidence compiled by the defendant and found that there was no rational basis to discriminate against homosexuals.

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