Lawyers for donkey-sex suspect challenge law's constitutionality

Lawyers representing a Marion County man accused of sexual activity with a miniature donkey have filed a motion asking a judge to declare the Florida statute banning sexual activities with animals unconstitutional.

Carlos R. Romero, 32, declared last week that he wanted to take his case to trial. He is accused of sexual activities involving animals, a first-degree misdemeanor, after he allegedly was found in a compromising position in August with a female miniature donkey named Doodle.

In the motion filed in Marion County court on Dec. 6, the assistant public defenders handling Romero's case — Joshua Wyatt, Scott Schmidt and Joshua Lukman — wrote that the statute infringes upon Romero's due process rights and violates the equal protection clause of the Fourteenth Amendment in the U.S. Constitution.

The statute's designated punishment for a first-degree misdemeanor conviction, a year in county jail, also constitutes cruel and unusual punishment and is excessive, the attorneys wrote.

Romero previously rejected the State Attorney's Office plea offer of a year of probation, a $200 fine, a psychosexual evaluation and possible treatment, STD testing, no contact with children in a school setting, no ownership or possession of any mammals, and revocation of his license to work in horse racing.

Last week at a brief status conference, Romero confirmed that he wanted to take his case to trial. Jury selection is scheduled to begin Monday.

The attorneys claim that the statute deprives Romero of his "personal liberty and autonomy when it comes to private intimate activities."

"By making sexual conduct with an animal a crime, the statute demeans individuals like Defendant (Romero) by making his private sexual conduct a crime," the attorneys wrote.

As another possible reason for unconstitutionality, the attorneys add that the statute doesn't require that the state prove any harm or injury to the animal "or any proof of the sexual activity being non-consensual."

"Therefore, the only possible rational basis for the statute is a moral objection to sexual acts considered deviant or downright ‘disgusting,'?" they wrote.

Using religion or the overall consensus of the public that sexual activity with an animal is wrong as the basis of a law is unjustified and bars Romero's personal liberties, the attorneys argued.

"The personal morals of the majority, whether based on religion or traditions, cannot be used as a reason to deprive a person of their personal liberties," the attorneys wrote. "If the statute were to require sexual conduct with animals to be nonconsensual or to cause injury in order to be a crime, then perhaps the State would have a rational basis and legitimate state interest in enforcement."

For the same reasons, the statute also violates the equal protection clause and singles out zoophiles. The attorneys cite that the statute does not ban specific zoophilic acts that "are non-consensual or inflict pain or injury on the animal."

Instead, the statute bans all zoophilic acts and the punishment for such behavior is excessive, the attorneys argue.

"The classification of zoophilic acts as first-degree misdemeanors is grossly out of proportion to the severity of zoophilic acts," they wrote.

Peter M. Brigham, an assistant state attorney and head of the prosecutor's office misdemeanor division, said Romero's attorneys are misinterpreting precedents from a U.S. Supreme Court case, Lawrence v. Texas, which addressed homosexuality and sodomy.

"They're applying the wrong constitutional test in their motion," Brigham said. "I don't think it (the statute) is going to be overturned."

A hearing on the motion is set for today.

In previous interviews, Romero said he would become destitute if he had accepted the state's plea offer because he wouldn't be allowed to work as an exercise rider and groomer in the horse racing industry.

He reportedly bought the animal from a man in Lake City for $500.

Romero admitted that he gets sexually aroused around animals more so than humans and allegedly masturbated with Doodle in his room. He claimed that he would have had sex with the miniature donkey eventually, but that she wasn't ready and was "blooming into maturity."

Romero said in previous interviews after one hearing that he never harmed the animal and all he wants is to have Doodle back in his care.  Ocala