Steamed-up car windows at the Super Wal-Mart parking lot in Staunton November 4 failed to disguise the activity inside that up until very recently was illegal in Virginia and in much of the United States. Despite the U.S. Supreme Court’s 2003 ruling challenging the constitutionality of sodomy laws, now two men face an array of charges, including crimes against nature, a Class 6 felony.

A complaint led police around 8pm election night to a gray ‘86 Chevy sedan in the busy Super Wal-Mart parking lot, where officers allegedly found Kenneth Lee Breeden, 69, performing oral sex on Ronald Bradford Beasley, 57.

Police say Breeden paid Beasley $100, and both men also were charged with prostitution, a Class 1 misdemeanor. Breeden, who was sitting behind the wheel, picked up a DUI as well. “If the key is in the ignition, you can be arrested,” explains Staunton police Officer Lisa Klein. According to police, Beasley, reluctant to exit the car, was dragged out, earning a charge for obstruction of justice.

The back and side windows were steamed up, according to Klein, but the front window may have been the problem. “The Wal-Mart is so busy, with lots of people walking and driving through,” she says.

While the U.S. Supreme Court in 2003’s Lawrence v. Texas decision struck down laws criminalizing sodomy between consenting adults in private, the key word in Virginia is “private.” And Staunton perhaps is not the best place to push sexual boundaries.

In August, Staunton Commonwealth’s Attorney Ray Robertson prosecuted the owner of After Hours Video and a clerk on pornography charges. During the four-day misdemeanor trial, he had a jury watch Sugar Britches and City Girls Extreme Gangbangs, the latter of which the jury found obscene.

So will Robertson take on the crimes against nature charge?

“Oh, God help me,” he exclaims when a reporter calls. “I’d better give that one to an assistant.”

He reads the crimes against nature statute, 18.2-361 in the Virginia Code: “If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.” (We love it when Robertson talks dirty— er, when he reads the Code of Virginia.)

While this sodomy law is still on the books in Virginia, “Anything you do in privacy of a bedroom is not illegal,” clarifies Robertson, although presumably he’s excluding “brute” animals, even if done in private

Essential, he explains, is that these acts occur “only in a place with an expectation of privacy.” That means the sauna at the YMCA or in the park, places where he’s won convictions, do not provide such expectations. Nor, apparently, does the Wal-Mart parking lot.

Other jurisdictions may seek lesser charges against those caught in flagrante delicto. For example, in last year’s Hook story, “Diddler on the roof: X-rated tryst shocks Mall workers,” a couple seen copulating on the roof of First Christian Church from the much taller Wachovia building could have faced possible charges of indecent exposure, a Class 1 misdemeanor, but got off with a warning.

Sex in a cemetery in Charlottesville also typically warrants an indecent exposure charge, police say, the same charge used for public urination or flashing. And if Breeden and Beasley had been busted in Charlottesville, they’d be looking at a misdemeanor indecent exposure charge as well.

“People making obscene displays are consistent with indecent exposure,” says City Commonwealth’s Attorney Dave Chapman, who notes that “the efficacy of statutes related to sodomy are sufficiently suspect.” More bluntly, “We got bigger fish to fry,” says Chapman.

Virginia’s sodomy law was written in 1792 by local hero Thomas Jefferson, who suggested castration as the appropriate penalty.

In the infamous 1995 Sharon Bottoms case, the Virginia Supreme Court relied on the law to strip a mother of custody of her son. In 1998, the law was used in Charlottesville against three sex-buyers, or johns, on West Main Street. Later that year, Albemarle County police charged 14 men for sodomy at the Ivy Creek Natural Area.

Albemarle Commonwealth’s Attorney Denise Lunsford doesn’t remember any recent crimes-against-nature prosecutions, so how would she handle Wal-Mart parking lot sex? “I’d worry about the public nature of it,” she says, “where children could come along.”

Whether one picks up a felony or a misdemeanor charge for public sex depends on the act and the locale in which it occurs. Civil libertarians have long been troubled that Virginia’s crimes-against-nature statute unfairly targets gays.

“If someone is penalized for sodomy, it ought to be the same as for other forms of public sex,” says Kent Willis, the director of the Virginia chapter of the American Civil Liberties Union. The General Assembly, he says, “ought to level the playing field.”

Various attempts by Democratic legislators have been killed by Republicans and Democrats alike. “They get incredibly squeamish when this comes up,” says Willis.

This was not Breeden’s first brush with the law for alleged sexual misconduct: He’s listed on the Virginia State Police Sexual Offender Registry for two counts in 1993 of aggravated sexual battery.

Both men are scheduled to appear in Staunton General District Court January 30.

Updated November 10.