In WilCo, Making a Pass Is OK ... Unless You're Gay

Offering a stranger a hand job may display poor manners and worse judgment – but does it warrant felony imprisonment? In Williamson County, it apparently could – at least if you're gay. That's the issue under consideration in a criminal case now before WilCo District Court Judge Billy Ray Stubblefield.

According to an Austin Police Depart­ment affidavit, in July 2006, 39-year-old Charles Elwood Ferguson III allegedly approached a 16-year-old male in a far North Austin Wal-Mart parking lot, "asked him if he swung both ways," and then "solicited a hand job." Though no hand job ensued (nor any other physical contact, for that matter), the alleged request apparently constitutes two third-degree felony counts of "criminal solicitation of a minor – [by] sexual contact," according to an indictment handed down by a WilCo grand jury on Jan. 23 – nearly two years after the supposed offense. The indictment further implicates Ferguson for "intent," which, if carried out, "would have constituted the [greater] offense of Indecency with a Child by Contact."

Ferguson denies the accusation altogether, and, according to his attorney Leonard Mar­tinez, he has polygraph test results to back his word – or rather, his choice of words. At the prehearing, attorney Chris Morgan said Ferguson's comments more closely resembled "a job with your hands" than a "hand job." According to Martinez, Ferguson has also been cleared by an expert of any indication that he's a "child predator." Regardless, the case highlights legal issues larger than just a matter of he said, he said.

During a pretrial hearing on Aug. 22, Mar­tinez presented a motion to quash the indictment, contending that Ferguson did not know the complainant was a minor, so the "contact" was with a presumed adult and was therefore constitutionally protected "free speech." In addition, the defense argued that the penal statute invoked by the prosecution, which banks on "belief and intent," is "unconstitutionally overbroad and vague" and punishes "thought crime" and that the law "criminalizes protected speech merely because of a mistaken belief they [defendant and complainant] are adults."

Moreover, Martinez argued, state law exempts similar offenses by heterosexuals not more than three years older than minor complainants, effectively making the law discriminatory toward homosexuals. Martinez told the Chronicle he believes that prosecution of Ferguson is derived from "apparently anti-gay sentiment." Essentially, the statute "penalizes speech, especially if gay," Martinez wrote.

Judge Stubblefield took the motion "under advisement." If it fails, Ferguson goes to trial Sept. 8.