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Albert wants sex case dismissed

September 16, 1997

ARLINGTON, Va. (AP) _ Marv Albert wants his case thrown out because prosecutors failed to allege he sexually penetrated his accuser, court documents released today said.

Defense lawyer Roy Black argued that penetration is an essential element of the crime of sodomy.

``This defect is fatal to the indictment and requires dismissal,″ Black wrote.

Albert, NBC’s most prominent sportscaster, is charged with forcing a woman with whom he had a 10-year sexual relationship to perform oral sex on him in an Arlington hotel Feb. 12.

The May 19 indictment charges that Albert ``did by force, threat or intimidation engage in an act of sodomy, to wit: fellatio″ with his accuser.

Sodomy, either forcible or consensual, is a crime in Virginia. Albert is charged with forcible sodomy and assault and battery, and could face up to life in prison if convicted at a trial to begin Monday in Arlington Circuit Court.

Prosecutors have not spelled out what Albert is accused of doing beyond saying he severely bit a 42-year-old Vienna, Va., woman on the back and forced her to have oral sex. A source close to the case told The Associated Press shortly after Albert’s arrest in May that the woman claimed Albert became angry when she refused his request for three-way sex involving another man.

Black called the indictment flawed, saying it should have had specific language regarding sexual penetration if prosecutors plan to argue at trial that it occurred. Judge Benjamin N.A. Kendrick will hear that motion Thursday.

Also released today was a motion asking Kendrick not to rule on Black’s constitutional challenge to Virginia’s anti-sodomy law until the trial begins.

``This court should take immediate steps to remove the cloud of this unconstitutional governmental regulation of private sexual practices from the private bedrooms of Arlington County,″ Black wrote.

At a hearing Sept. 4, Black argued that the anti-sodomy law is an invasion of Albert’s privacy and that he should not be prosecuted for engaging in consensual sex if the charge against him is that he forced his accuser.

Prosecutors, however, argued that Albert could not have expected privacy at the Ritz-Carlton Hotel because of Albert’s expectation that a man would join them.

Kendrick said he would rule on those challenges later.

Black argued that the anti-sodomy law is ``ripe for ruling by this court, and failure to rule will chill the exercise of such protected privacy rights by the accused or others.″

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