Nature of the Case
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Facts
Police were conducting a downtown undercover operation. Their modus operandi was to drive to a certain parking area, in plain clothes with microphones on their persons, and try to engage in conversation with persons passing by to see whether they would be solicited for sexual contact. The taped conversation between the undercover officer and D covered approximately 20-25 minutes, toward the end of which D invited the officer to 'come home' to his residence. After being prodded for details, D suggested sexual activities which violated KRS 510.100. There was no suggestion that sexual activity would occur anyplace other than in the privacy of D's home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited. D was charged with having solicited an undercover policeman to engage in deviate sexual intercourse. A statute punishes 'deviate sexual intercourse with another person of the same sex' as a criminal offense, and specifies 'consent of the other person shall not be a defense.' D moved to dismiss the charge on grounds that a statute criminalizing deviate sexual intercourse between consenting adults of the same sex, even if the act is committed in the privacy of a home, violates the Kentucky Constitution as: (1) an invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Seven expert witnesses testified in support of D's case. None for P. The District Judge held the statute violated appellee's right of privacy and dismissed the charge. P appealed to Fayette Circuit Court which affirmed, and further held this statute infringed upon equal protection guarantees found in the Kentucky Constitution. P appealed, and, because of the constitutional issues involved, this Court granted transfer.
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