Virginia AG fights to keep state's sodomy law on the books, sort of

I’m borrowing BuzzFeed’s headline but the facts are more complicated than it suggests. Per John McCormack, this isn’t a traditional sodomy case. It involves a 47-year-old man … and a 17-year-old girl. Question for the courts, then: Does the Supreme Court’s famous decision in Lawrence v. Texas ban all laws prohibiting sodomy, or does it apply only to laws that attempt to regulate sexual conduct between consenting adults?

Needless to say, this isn’t any random AG either. It’s Ken Cuccinelli, GOP candidate for governor and potential future presidential candidate. Good politics or bad?

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled on March 12 that Virginia’s “Crimes Against Nature” statute, which banned oral and anal sex, violates the due process clause of the Fourteenth Amendment. One judge dissented, agreeing with a lower court that the Supreme Court’s ruling in Lawrence v. Texas on sodomy laws applied only to consenting adults. The case in question involved a teenage girl and a 47-year-old man, William Scott MacDonald, who was convicted of soliciting a minor to commit a felony…

In Virginia, sex with a minor who is 15 or older can be a misdemeanor but not a felony. (MacDonald was also convicted of the misdemeanor of contributing to the delinquency of a minor and is not challenging that decision.)

Normally he’d charge the guy with statutory rape but the law won’t allow a felony for that with a minor in this age range, so he dropped a felony sodomy charge on him instead. Might be unconstitutional, but swing voters likely won’t judge a prosecutor harshly for seeking maximum punishment for a middle-aged man leching around with an underaged girl. More from BuzzFeed:

In considering Cuccinelli’s argument, the appeals court discussed the various ways courts attempt to “save” statutes from being found unconstitutional by interpreting them narrowly but also noted that the Supreme Court has warned about “the dangers of too much meddling” because that would mean the judicial branch has taken over the role of the legislative branch. New laws can be passed in certain situations that might be constitutional even where a previous law cannot be “saved.”

The court concluded that Virginia’s sodomy law after the Lawrence decision is such a law, writing, “We are confident, however, that we adhere to the Supreme Court’s holding in Lawrence by concluding that the anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.”

Because they found it to be facially unconstitutional, that means it is unconstitutional in all situations and could not be used to convict MacDonald of the solicitation crime.

So the Lawrence decision doesn’t prevent states from imposing criminal penalties on adults who have sex with children but does prevent states from imposing penalties (or rather, extra penalties) on adults for engaging in the specific act of sodomy with a child? That’d be a fun SCOTUS argument. Terry McAuliffe, Cuccinelli’s opponent for governor, unsurprisingly isn’t eager to attack him for trying to throw the book at a guy who solicited sex from a minor — read McCormack’s piece linked up top for more on that. There’s an obvious way for him to hit Cuccinelli, though: Agree with him that the defendant deserved more than a misdemeanor but insist that it’s up to the legislature to handle that, ideally by increasing the penalty for statutory rape. If he’s feeling bold, he could accuse Cuccinelli of defying the will of the voters by trying to shoehorn a felony charge into an offense that the people’s representatives have said should only count as a misdemeanor.

Cuccinelli has, incidentally, said before that he considers homosexual acts to be wrong and that “in a natural law-based country it’s appropriate to have policies that reflect that.” The left suspects, then, that he’s using the current case simply to reestablish a foothold for sodomy laws in hopes of rehabilitating them constitutionally so that they once again apply to adults. I wonder how they imagine the slippery slope going here. If Cuccinelli wins this case and carves out a constitutional exception for anti-sodomy laws as applied to adults and children, what’s next in the alleged parade of horribles? Prosecuting people who engaged in sodomy while drunk because they didn’t intelligently consent? I think Cuccinelli’s enemies are overreacting to what seems more like an electoral gambit to show he’s tough on miscreants rather than some sustained effort to roll back sexual freedom, but then those differences of opinion are what the culture war’s all about.

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