April 3, 2013 | by Lou Chibbaro Jr.
Cuccinelli challenges Va. sodomy ruling
Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

Virginia Attorney General Kenneth Cuccinelli is challenging a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)

Virginia Attorney General Kenneth Cuccinelli has filed a petition with the 4th Circuit U.S. Court of Appeals in Richmond asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.

The three-judge panel ruled 2-1 on March 12 that a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas.

A clerk with the 4th Circuit appeals court said a representative of the Virginia Attorney General’s office filed the petition on Cuccinelli’s behalf on March 26. The petition requests what is known as an en banc hearing before the full 15 judges to reconsider the earlier ruling by the three-judge panel.

“We certainly hope they won’t,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law.

“We think it’s a situation in which everybody agrees that the statute is unconstitutional,” Gastanaga told the Blade.

Greg Nevins, an attorney with the LGBT litigation group Lambda Legal Defense and Education Fund, which joined the ACLU in filing the friend of the court brief calling for overturning the Virginia sodomy law, said requests for en banc hearings are turned down most of the time.

He quoted a federal appeals court rule as stating, “Although petitions for rehearing are filed in a great many cases, few are granted.”

Caroline Gibson, a spokesperson for Cuccinelli, told the Blade in an email that Cuccinelli believes the dissenting judge on the three-judge panel was correct in stating the Lawrence decision applies only to sex between consenting adults in private and doesn’t apply to cases involving a minor. The case in which the three-judge panel of the 4th Circuit Court of Appeals overturned the Virginia sodomy law involved a man charged with soliciting oral sex from a 17-year-old woman.

“We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief, Gibson said, referring to the court’s decision to overturn the man’s conviction under the sodomy law. “So the full court should have the opportunity to decide this matter,” she said.

“Like most people, we think the court made the right decision,” said James Parrish, executive director of the LGBT advocacy group Equality Virginia.

“We think what needs to happen is the General Assembly needs to remove the current sodomy law that has been declared unconstitutional,” he said.

Parrish said Equality Virginia wouldn’t object to a careful revision by the legislature of the state’s criminal code to allow for continued prosecution of offenses such as sex with minors.

“What we’re saying is we agree with the court ruling that, in this case, the law was used unconstitutionally. The best course of action would be for the General Assembly to address that, just like they did with the cohabitation law that they took off the books this year,” he said.

“We think that’s a better recourse than the Attorney General filing another appeal and diverting precious state resources on an issue that the General Assembly should address because the court made the correct ruling on March 12,” Parris said.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, said he is looking into the issue and the possibility of introducing legislation to address it.

“I’m reviewing this and will consider introducing a bill next year to repeal the Virginia Crimes Against Nature law for consenting adults,” he told the Blade.

The March 12 ruling of the appeals court’s three-judge panel overturned a lower court decision upholding the conviction of a 37-year-old man charged in 2005 with soliciting a 17-year-old woman to engage in oral sex. No sexual encounter took place, records show.

The Attorney General’s office argued that the Supreme Court’s Lawrence decision didn’t apply to cases involving minors. But 4th Circuit Appeals Court Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statue “facially” or completely unconstitutional.

He stated other laws could be used to prosecute an adult for engaging in sex with a minor and that the Virginia General Assembly would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

42 Comments
  • Jerry Blackburn

    Crime against nature? That's funny because over 1500 animal species naturally exhibit homosexuality from pair-bonding to parenting. It is brain damaged people like Cookoo-nelly that are a crime against nature. http://en.wikipedia.org/wiki/List_of_animals_displaying_homosexual_behavior

    • Kìng Samolas Stormhold

      No, it's completely uneducated people like you and the wikipedia community of homosexual animals that don't understand that animals do not exhibit homosexuality.

      First, animals do not have sex for pleasure. Yes, an animal can gain some sort of pleasure through sex, but sex is not an act that animals do for fun. They do not have mental sexual development. They turn about a year old, and some male knocks them up. Using nature to defend homosexuality is broken, because grandparents have sex with their grandchildren all the time. A male responds to female mating ques, and deposits semen into a female.

      Second, every single case of "homosexuality" that you speak of is either a fluke or a means to an end. There are explosive breeders that will mount anything that moves, including fallen logs. The males of these species have release calls to say "Hey, I'm a dude, get the hell off of me." Which they utilize EVERY SINGLE TIME. There is also a species of wasp that you idiots would say is homosexual. Wrong again. The males of this species create a gift to give to female wasps. Smaller males, instead of making lesser gifts and mating with lesser females, will pretend to be a female in order to steal the male's gift, escaping long before any penetration happens.

      Third, let's talk about your stupid gay penguins you people like to rally behind. Male penguins sit on eggs. It's not because they are gay. It's because that's what they do. They sit on eggs in a gigantic group of other men, together, in a giant mass of men. Zero of these penguins are gay.

      Fourth, males mounting other males in nature almost never leads to penetration, is absolutely HATED by the male being mounted, and is usually done in dominance or on accident because of castration confusion.

      So at the very most, I'll give you and the other art majors that moderate the list of homosexual animals page rape.

      It's completely natural for men to rape other men on accident or in a show of dominance.

      Animals are not gay.

    • Kìng Samolas Stormhold

      But why listen to people who are doing the current day research in animal ecology and behavior, someone like me who actually has a degree in this kind of thing.

      I'll say it again. Animals are not gay. Biologically the ONLY goal of an animal is to pass along its genetic code. Homosexual animals would be literally and figuratively laughed out of the gene pool. Stop using nature as another bad argument for your standardless views.

    • Kìng Samolas Stormhold: One who purports to be a scientist should check one's facts prior to positing sweeping statements. Moreover, if one is a good scientist, one hedges – because a good scientist always knows that he has not encountered every possibility.

      Regarding animal sexuality, it is impossible to state that animals do not mate for pleasure. That is a myth that was debunked in the 2006 Danish Animal Ethics Council report. Why WOULD anyone listen to you, when your "facts" are provably nonfactual?

    • Kìng Samolas Stormhold, you may want to take a look at this. It is from a "news" outlet that I'd bet you trust.
      http://www.foxnews.com/story/0,2933,572326,00.html

    • Mike Parido: LOL!

      "King" (snicker): For even more scientific data (and see, I corroborate with peer-reviewed articles, something every scientist learns to do in his or her undergraduate education):

      http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2714225/

      Hope the terms aren't too technical for you.

    • King, you wouldn't have to have a source for your claim, would you?

    • King, you wouldn't have to have a source for your claim, would you?

    • King Samolas Stormhold (if that is your name) your display of ignorance is truly breathtaking. Keep the conservative faith bro!

    • So King supposedly has a degree in animal ecology? I guess that explains his fascination for Pokemon..

    • King… you sir are an idiot!!! lol

    • Kìng Samolas Stormhold You're 100% incorrect, the Bonobo monkey (just for one example) ABSOLUTELY has sex for pleasure. It's irrefutable. And you're a bigot and a moron.

  • Mark Dammann Ungemach

    Has he nothing better on which to focus?

  • Virginia just took the cohabitation law off the books last year? Good grief, I thought they did that in the mid '60's! Well, I guess that is pretty quick, considering it is Virginia. Maybe they will be a bit faster on this one–perhaps 3 or 4 years?

  • The GOP; minding other people’s business for over a century. Hey, Cooch, why don’t you stop the panty-sniffing? Does it really bother you so much that other people might be having more fun than you? This idiot would make the Puritans blush, he’s just an embarrassment. Way to go, Virginia!

  • These evangelical men think more about butt sex then gay people do.

  • Oh my, next thing you know he's going to try to undo VA v Loving! That'll be a hoot but not out of the realm of belief.

  • what's up with the Cuch! since he has taken office he seems way to interested in demonstating his distaste for the gay citizens of the state or anything to do with Barack Obama.Why waste your time in beating dead horses.Why can't these people work on things like building Police and public safety infrastucture to include real policy and enforcement plans.Why waste everybody's time and the states energy on questionable morality witchhunts whose only purpose seems to be made for television mini-series featuring The Cuch coming down the mountain carrying stone tablets with the eleventh scrawling saying elect the Cuch to govenor.

  • Virginia's attorney general needs to be disbarred.

    In 2003 the US Supreme Court in Lawrence v. Texas, invalidated sodomy laws in the fourteen states (Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia).

    Since he's had 10 years to read that, I hope the judge he appears in front of fines him for wasting the court's time and turns him into the state bar. There is no excuse for that type of idiot practicing law.

  • Don't be so quick to think this is just another out-of-touch Republican (though perhaps he is on other issues). The attorney general here is trying to find a way to use this now-unconstitutional Virginia law to prosecute a dude for propositioning a minor (a 17-year-old in this case). If it had been standard intercourse they could presumably call it statutory rape, but apparently Virginia doesn't include oral sex in with statutory rape. So the AG here is arguing that Lawrence v. Texas, the Supreme Court case that invalidated all these sodomy laws, addressing as it does consenting adults, should only apply to consenting adults.

    Basically the Virginia legislature needs to expand their definition of statutory rape to protect minors from creepy old dudes looking for a BJ, but since they haven't yet done so, the AG would like to find a way to prosecute this guy anyway. And that's not such a bad thing, and it wouldn't affect any adult's right to engage in whatever sex acts they enjoy.

    • Except he still wouldn't be able to prosecute this case – prosecution would have to be on the basis of the state of the law at the time of the offense. Nothing he does would make this a prosecutable case. If he wants to prosecute such cases in the future, then he needs to quit wasting time like this and work towards getting the current laws regarding conduct with a minor changed to include oral sex. He could have already gotten that accomplished in the time he's spent piddling around with this.

  • Shannon Martinez

    I don't know what to say about this. I can't help but feel that Cuch is wasting his time and making his state more patehtic. 17 year olds are in high school possibly having sex with each other. So the 37 year old was being a creep.

  • Whatevia Santiago

    If this type of activity is made illegal, what will I give my husband for his birthday from now on?

    • As long as no one gets hurt what happens in my bedroom is private! Between consenting adults. 17? questionable. Creepy guys? All over the place old and young.

      Unfortunately most likely what this guy is against is what he is doing. George W. anti drug? hmmm coke and alcohol when he was in his twenties-thirties. Whenever someone is so vehement against something I stop to wonder if they have done it in the past or are currently doing it.

  • 'Crimes against nature'! What about the crime of 'clear-cutting', of 'mountaintop removal', of the endless polluting and destroying of our natural environment? Global warming… there's a world-ending crime against Nature right there that no one is doing anything about! Yes, I agree, let's put a stop to crimes against nature…before it's too late and the planet dies. As for consenting adults sexually stimulating each other for pleasure… c'mon, give me a break!

  • Belinda Paysinger

    Why isn't this guy concerned about jobs? Does he think good governance, is related to an individual's sexual habits?

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