United States District Court, S.D. Mississippi, Northern Division
ARTHUR DOE; BRENDA DOE; CAROL DOE; DIANA DOE; and ELIZABETH DOE PLAINTIFFS
JIM HOOD; MARSHALL FISHER; CHARLIE HILL; COLONEL CHRIS GILLARD; and LT. COLONEL LARRY WAGGONER DEFENDANTS
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
1978, Arthur Doe pleaded guilty to violating
Mississippi's “Unnatural Intercourse” law.
Miss. Code Ann. § 97-29-59. The statute prohibits oral
and anal sex, or what is also known as sodomy. As a result of
his conviction, Doe was later required to register as a sex
Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme
Court held that a Texas statute, criminalizing same-sex
sodomy, violated the Due Process Clause of the Fourteenth
Amendment. That decision overruled Bowers v.
Hardwick, 478 U.S. 186 (1986), in which the Supreme
Court had upheld the constitutionality of a Georgia statute
that criminalized sodomy.
years later, Mississippi continues to enforce its
pre-Lawrence prohibition on “unnatural
intercourse.” Mississippi requires persons convicted
under the statute, or an equivalent out-of-state offense, to
register with the Mississippi Sex Offender Registry (MSOR).
asserts that the anti-sodomy law is unconstitutional on its
face and as applied to him under the Due Process Clause of
the Fourteenth Amendment. Alternatively, he argues that his
inclusion on the MSOR violates the Equal Protection Clause.
Mississippi responds that Lawrence does not protect
non-consensual acts of sodomy, and that it may enforce its
sodomy prohibition when applied to such conduct, as in
Court agrees with Doe that the statute appears to be
unconstitutional. He should not be subjected to the
stigmatizing requirements imposed by the MSOR. As discussed
below, though, this Court may not be the appropriate forum
for Doe to seek relief at this time. A hearing is necessary
to determine whether Doe must first seek relief in state
October 17, 2016, five Mississippians filed this putative
class action pursuant to 42 U.S.C. § 1983. Plaintiffs
challenged the constitutionality of Mississippi's
Unnatural Intercourse law, as well as their inclusion on the
MSOR. They sought declaratory and injunctive relief.
Doe is a Mississippi resident convicted under
Mississippi's Unnatural Intercourse statute. Brenda Doe,
Carol Doe, Diana Doe, and Elizabeth Doe are Mississippi
residents convicted of Louisiana's Crime Against Nature
by Solicitation (CANS) law. Because of these offenses, the
State required Plaintiffs to register with the Mississippi
Department of Public Safety as sex offenders.
are five state officials responsible for enforcing
Mississippi's sodomy prohibition or the MSOR: Jim Hood,
the Attorney General of the State of Mississippi; Marshall
Fisher, the Commissioner of the Department of Public Safety;
Charlie Hill, Director of the Department of Public Safety Sex
Offender Registry; Colonel Chris Gillard, the Chief of the
Mississippi Highway Patrol; and Lieutenant Colonel Larry
Waggoner, the Director of the Mississippi Bureau of
after filing their Complaint, Plaintiffs moved for summary
judgment and moved to certify a class. This Court denied both
motions, and granted Defendants' request to take
discovery relating to class certification
issues. Plaintiffs have since abandoned their
claim for class certification.
the next year, the parties worked to resolve the claims of
the “CANS Plaintiffs, ” individuals who were
convicted under the Louisiana anti-sodomy law and required to
register as sex offenders in Mississippi. A Louisiana
district judge had ordered that Louisiana remove CANS
offenders from its own sex offender registry. See Doe v.
Jindal, 851 F.Supp.2d 995, 1009 (E.D. La. 2012)
(granting summary judgment to individuals with CANS
convictions because they were deprived of equal protection in
violation of the Fourteenth Amendment). On May 10, 2018, the
parties reached an agreed resolution removing the CANS
Plaintiffs, and any other individuals on the MSOR because of
CANS convictions, from the MSOR. See May 10, 2018
plaintiff, Arthur Doe, remains. He brings two claims. First,
he asserts facial and as-applied due process challenges to
the anti-sodomy law. In the alternative, he argues that his
classification as a sex offender violates the Equal
Protection Clause. The Court takes up his claims on the
parties' Cross-Motions for Summary
seeks to enjoin the State from enforcing its sodomy
prohibition, Mississippi Code § 97-29-59, and to remove
the statute as an offense subject to the MSOR under §
“Unnatural Intercourse” Statute
1962 to 2003, sodomy decriminalization proceeded
rapidly. Twenty-six states and the District of
Columbia repealed their anti-sodomy laws, and state courts
struck down an additional 10 state laws. When
Lawrence arrived at the Supreme Court, only 13
states- including Mississippi-still had sodomy prohibitions
on the books. In the wake of the decision, state
legislatures in Missouri and Kansas amended or repealed their
laws,  and the Fourth Circuit invalidated
Virginia's sodomy prohibition. MacDonald v.
Moose, 710 F.3d 154 (4th Cir. 2013).
is among those states that still criminalizes consensual anal
and oral sex. The state prohibition has existed in some form
for over 200 hundred years. In 1802, Mississippi first
recognized sodomy as a common law crime, and in 1839, the
state legislature codified the prohibition. Over a century
later, Mississippi recodified the law under a new title,
“Unnatural Intercourse.” The current statute
prohibits, in pertinent part, “the detestable and
abominable crime against nature committed with
mankind.” Miss. Code Ann. § 97-29-59. Those
convicted of the offense face up to 10 years'
Mississippi Supreme Court has defined the statute to
encompass an act of sodomy, i.e., anal or oral sex.
See, e.g., Miller v. State, 636 So.2d 391 (Miss.
1994); State v. Mays, 329 So.2d 65 (Miss. 1976).
These decisions have made clear that a prosecutor need only
prove a single element-that the defendant engaged in anal or
oral sex. The prosecutor does not have to prove that the sex
was non-consensual. In other words, the statute criminalizes
consensual sex acts between adults and applies to both males
Sex Offender Registration
1995, Mississippi enacted the Mississippi Sex Offenders
Registration Law. Miss. Code Ann. §§ 45-33-21
et seq. The legislature found “that the danger
of recidivism posed by criminal sex offenders and the
protection of the public from these offenders is of paramount
concern and interest to the government.” Id.
§ 45-33-21. The law established the MSOR, which requires
registration for a range of offenses including convictions
under the Unnatural Intercourse law or any “similar law
of another jurisdiction.” Id. §
35 Mississippi residents have convictions for Unnatural
Intercourse or an out-of-state statute that criminalizes oral
or anal sex with no additional elements. Of these, about 22
individuals are registered on the MSOR.
registration law classifies offenses into “tiers”
that determine the length of time an individual must register
before she is allowed to petition a circuit court for removal
from the registry. Id. § 45-33-47(2).
Individuals with one conviction under the Unnatural
Intercourse law (or a statute that Mississippi deems
equivalent) fall into “Tier Two” and must
register for a minimum of 25 years. Id. §
45-33-47(2)(c)(i). Two such convictions require lifetime
registration with no possibility of removal. Id.
§ 45-33-47(d)(xvi). After Tier Two registrants complete
25 years on the registry, they may petition the court in
which they were convicted for removal. Id. §
45-33-47(2). But incarceration for any offense restarts the
minimum time requirement. Id. § 45-33-47(2)(a).
Only four individuals have successfully petitioned for
must adhere to a number of sweeping requirements. Every 90
days, they must re-register in-person with the Department of
Public Safety and pay a fee. Id. § 45-33-31(1).
Registration includes the submission of current personal
information, including their street address and telephone
number as well as the street address and telephone number of
their employer. Id. § 45-33-25(2). They must
carry state identification cards or driver's licenses
that “bear a designation identifying the cardholder as
a sex offender.” Id. § 45-35-3(2).
registrant that wishes to volunteer with an organization must
disclose her sex offender status to the organization if it
has “direct, private, and unsupervised contact with
minors.” Id. § 45-33-32(1). If the
organization accepts the registrant as a volunteer, it must
notify the parents of any minors involved in the organization
of the registrant's criminal record. Id. §
Department of Public Safety lists registrants on its public
website and discloses registrants to schools, social service
agencies, prosecutors' offices, and law enforcement
offices within the registrant's
jurisdiction. Id. § 45-33-36. Registrants
may not live within 3, 000 feet of schools, child-care
facilities, child group homes, playgrounds, ballparks, or
recreation facilities used by children. Id. §
to re-register or comply with another statutory requirement
can result in arrest, driver's license suspension, a fine
of $5, 000, or imprisonment of up to five years. Id.
§ 45-33-33(2), (4), (7).
Cross Motions for Summary Judgment 
Defendants first argue that Heck v. Humphrey bars
Heck, the Supreme Court held that a state prisoner
cannot attack the validity of her conviction or sentence in a
§ 1983 damages action without proving that the
conviction or sentence has been “reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.” 512 U.S.
477, 486-87 (1994). The Court's rationale was based, in
part, on a desire to “avoid parallel litigation over
the issues of probable cause and guilt, ” prevent
“the creation of two conflicting resolutions arising
out of the same or identical transaction, ” and
preclude “a convicted criminal defendant [from making
a] . . . collateral attack on the conviction through the
vehicle of a civil suit.” Id. at 484.
Muhammad v. Close, the Supreme Court explained that
Heck meant “that where success in a
prisoner's § 1983 damages action would implicitly
question the validity of conviction or duration of sentence,
the litigant must first achieve favorable termination of his
available state, or federal habeas, opportunities to
challenge the underlying conviction or sentence.” 540
U.S. 749, 751 (2004). In short, Heck created a
“habeas exhaustion rule” in which plaintiffs must
“resort to state litigation and federal habeas before
§ 1983.” Id. at 751-52.
Heck originally appeared limited to damages suits,
the Supreme Court extended this rule to claimants seeking
declaratory or injunctive relief. In Wilkinson v.
Dotson, the Supreme Court explained that “a state
prisoner's § 1983 action is barred (absent prior
invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit . . . if success in that ...