## Facts

- Kentucky law (KRS 510.100) made “deviate sexual intercourse” between persons of the same sex a Class A misdemeanor and provided that consent was no defense, even for private, noncommercial conduct between adults.
- The statute prohibited specified sexual acts (including oral-genital and anal-genital acts) only when committed by same-sex partners; the same acts were lawful for male-female couples.
- Jeffrey Wasson, a 23-year-old nursing student, was arrested in Lexington after an undercover operation.
- Wasson was charged with solicitation (KRS 506.030) for inviting an undercover officer to engage in conduct prohibited by KRS 510.100.
- Wasson moved to dismiss, asserting that criminalizing private, consensual adult same-sex intimacy violated Kentucky constitutional privacy and equal protection guarantees.
- The Fayette District Court dismissed the charge as unconstitutional; the Fayette Circuit Court affirmed; the Commonwealth sought review in the Kentucky Supreme Court.

## Issues

1. Whether KRS 510.100 violates the Kentucky Constitution by criminalizing private, consensual sexual intimacy between adults of the same sex.
2. Whether KRS 510.100 violates Kentucky equal protection principles by criminalizing specified sexual acts only when performed by same-sex partners.

## Decision

- The Kentucky Supreme Court affirmed dismissal of the charge and held KRS 510.100 unconstitutional by a 4–3 vote.
- The court held that Kentucky constitutional liberty protections include a right of privacy that bars criminal punishment for private, consensual adult sexual conduct that does not directly injure society.
- The court held the statute also violated equal protection because it punished identical sexual acts solely based on the sex of the participants, without a rational basis.
- The court relied on independent state constitutional grounds and declined to treat contrary federal precedent as controlling on the meaning of Kentucky’s Constitution.

## Legal Principles

- State constitutional liberty provisions may protect personal privacy more broadly than the federal constitutional minimum.
- Government may not criminalize purely private, consensual, adult conduct that is self-regarding and does not directly harm society, where state constitutional protections are construed to shield such conduct.
- Equal protection is violated when a criminal statute treats similarly situated persons differently and the distinction lacks a rational basis; moral disapproval alone cannot justify selective criminalization based on sexual preference or the sex of participants.
- A state court may invalidate a statute on adequate and independent state constitutional grounds even if analogous federal claims would fail under then-existing federal precedent.

## Conclusion

Kentucky’s highest court struck down the state’s same-sex-only sodomy statute, holding that the Kentucky Constitution protects private, consensual adult intimacy from criminal punishment and forbids the statute’s unequal treatment of same-sex couples absent a rational basis.


Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992)