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On Friday, a court in Alabama ruled unconstitutional part of a state “sexual misconduct” law effectively outlawing gay sex. The unanimous ruling, handed down Friday in a state appeals court, was the first in the state to address that law since Lawrence v. Texas the 2003 Supreme Court decision that found consensual sex bans in violation of the Constitution.

It may seem like a “no duh” move on the court’s part, but prosecutors in the states where bans remain on the books occasionally trot these laws out to convict people. The defendant in the Alabama case was initially tried for first degree sodomy — a much more serious sexual assault charge — but was convicted instead of sexual misconduct, a lesser charge to which “consent is no defense.” That law, which prohibits oral or anal sexual contact between unmarried adults, all but explicitly targets same-sex conduct and had remained untested in the wake of Lawrence v. Texas. The defendant was sentenced to a year in jail and two years of probation, which is serious time for someone convicted under an unconstitutional statute.

It seems as though the defendant in this case was found guilty of sexual misconduct because there was evidence of consent; prosecutors asked the jury to consider the misconduct charge in addition to first degree sodomy, meaning he would face a conviction regardless of whether the other party consented. The appeals court called nonsense on this move in its decision and overturned the conviction.

Now, this case isn’t a perfect example of the law and its flaws. The link above describes what to me seems like a pretty clear-cut assault, and it’s upsetting to think there is a victim here whose chance at seeing their assailant in jail was taken away on a technicality. However, prosecutors shouldn’t use unconstitutional laws as a backup if their case isn’t strong enough for an assault conviction. That doesn’t serve the victims due justice, and it does expose millions of consensual sexual encounters to unfair prosecution. ThinkProgress points out that Alabama’s high court could even try to reinstate the ban if this case gets there, given its conservative leanings:

The state’s chief justice, Roy Moore, is vocally anti-gay and he has a well-known history of violating the Constitution. One of his colleagues, Justice Tom Parker, compared a judge who struck down the military’s anti-gay Don’t Ask/Don’t Tell policy to al-Qaeda. Parker also has a history of urging defiance of Supreme Court rulings.

It’s 2014, and states across the country are seeing greater legal protections for LGBT people, including same-sex marriage, hate crime laws, health care provisions and more. However, there are some places in the U.S. where simply having consensual sex with the wrong person puts you at risk for prosecution. That’s just not right, and it’s time for the other 11 states that allow this to address their faulty laws and ensure that no one will be prosecuted under them again.

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