Virginia’s Cuccinelli asks court to reconsider anti-sodomy law

Liz Goodwin
The Ticket

Virginia Attorney General Ken Cuccinelli has petitioned an appeals court to reconsider its decision to strike down the state's anti-sodomy law.

Cuccinelli is asking the full 15-judge panel of the 4th Circuit U.S. Court of Appeals to uphold the state's sodomy ban, the Washington Blade first reported, after a three-judge panel invalidated the law last month.

Anti-sodomy laws were struck down by the Supreme Court in 2003, with conservative-leaning Justice Anthony Kennedy joining the court's more liberal members in Lawrence v. Texas, which ruled the laws violate the rights of gay people. Kennedy wrote that the statutes touch "upon the most private human conduct, sexual behavior, and in the most private of places, the home."

Even after the ruling, however, some states kept the statutes on their books, including Virginia. (According to the gay rights group Equality Matters, 18 states still have laws on the books that criminalize anal and/or oral sex.) Many of the states no longer enforce these laws, while others enforce them only in cases that involve an adult having sex with a minor or a prostitute.

States justify keeping the laws because the Supreme Court explicitly wrote in Lawrence that the case involved only consenting adults, not minors, prostitutes or people unable to make decisions for themselves. That suggested that anti-sodomy laws could still be used to prosecute adults soliciting minors or prostitutes for oral or anal sex.

But in its March decision, the 4th Circuit rejected that interpretation. William Scott MacDonald, 47, was convicted by a court in Colonial Heights, Va., for asking a 17-year-old girl to perform oral sex on him. MacDonald—a combat veteran with PTSD, according to his wife—falsely accused the girl of abducting and sexually assaulting him. When police questioned her about his fabricated claim, she told them he solicited her for oral sex.

MacDonald was convicted of a felony in part under Virginia's law banning oral and anal sex, and sentenced to prison. He challenged the decision, arguing he was convicted under a statute that the nation's highest court had thrown out.

The 4th Circuit sided with MacDonald in its decision last month, saying the state could have prosecuted McDonald if there were another law specifically banning sodomy between adults and minors, but could not use the broader and invalidated anti-sodomy ban to prosecute anyone. (Virginia's statute does not mention minors.) One judge dissented, writing that it was an overreach for the court to knock down the law entirely.

Cuccinelli argued in his brief that the Lawrence decision appears to apply only to situations where consenting adults are engaging in sodomy in the privacy of their own homes. "Plainly, the scope of the Supreme Court’s decision in Lawrence was not so evident that it necessarily invalidates sodomy convictions even where no expectation of privacy among consenting adults is involved," he wrote.

MacDonald had been convicted two previous times for violating Virginia's prohibition of anal and oral sex, twice each with two minors, one 17 and one 16 years old.

Cuccinelli is the conservative front-runner in Virginia's gubernatorial race.