VA Attorney General Appeals to Defend Anti-Sodomy Law

Jun 26, 2013

Virginia’s attorney general is asking the U.S. Supreme Court to let the Commonwealth keep its law against sodomy on the books, because he claims it protects children from predators, but critics say we have other laws to do that, and Cuccinelli is simply playing politics.

In 2003, the U.S. Supreme Court struck down an anti-sodomy law in the case of Lawrence v. Texas, saying it violated Americans’ constitutional right to privacy.

“The government can’t tell two consenting adults what they can do in private.”

That’s Claire Gastanaga – Executive Director of the American Civil Liberties Union of Virginia.  She argues the government can’t be allowed to convict anyone using an unconstitutional law, but Attorney General Ken Cuccinelli says this state’s sodomy law was applied constitutionally in the case of MacDonald versus Moose.

“The case in question is a 47-year-old man who was convicted of propositioning a 17-year-old girl, and this 47-year-old man – this was a repeat offense for him.”

No sexual act was involved.  The girl said no, and the man did not persist, but he was charged with a felony under Virginia’s sodomy law.  Without that statute, Cuccinelli says little could be done.

“There are misdemeanors, like contributing to the delinquency of a minor, but that doesn’t get you on the sexual offenders registry.”

And, he adds, about 90 people could appeal to be taken off the official registry of sex offenders, unless the Supreme Court overturns a 2-1 ruling by a lower court, throwing out Virginia’s sodomy statute. Cuccinelli insists the state’s law has nothing to do with sexual orientation or private acts between consenting adults.

The prosecutors of Virginia have been very responsible about that.  We wouldn’t carry forward an appeal that was in violation of the Lawrence v. Texas ruling of the Supreme Court, but this one isn’t.  This is about protecting children.”

But the ACLU says the law continues to define sodomy as a crime, even for consenting adults, and citizens shouldn’t have to study Supreme Court rulings to know if they’re committing a felony. 

“If you read it, and you’re somebody trying to figure out what’s legal and what’s illegal in Virginia, you would think it’s illegal for two adults to have consensual oral sex.  The General Assembly should have used the last decade to repeal our current statute and put in place a consistent, comprehensive law that deals with sex offenses with minors, if there was a desire   to ban all consenting behavior between a minor and an adult – even a minor of 17.”

Cuccinelli doubts the Supreme Court will decide whether to rule on or hear his appeal until October, when it returns from a summer recess.