March 13, 2013 at 8:49 am EDT | by Lou Chibbaro Jr.
Court strikes down Va. sodomy law
Supreme Court, gay news, Washington Blade

The U.S. Supreme Court struck down sodomy laws as unconstitutional back in 2003, but such laws remain on the books in some states. (Washington Blade file photo by Michael Key)

A federal appeals court handed down a 2-1 decision on Tuesday striking down a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight.

The 4th U.S. Circuit Court of Appeals issued its ruling in a case in which a 37-year-old married man was charged in 2005 with soliciting another woman, who was 17, to engage in oral sex.

William Scott MacDonald, who lived at the time in the City of Colonial Heights, was convicted of a misdemeanor offense of contributing to the delinquency of a minor and of a felony offense of solicitation for sodomy.

The 4th Circuit federal appeals panel overturned his conviction by a trial judge on the solicitation charge and reversed two lower court rulings that upheld the trial court decision – all on grounds that the 2003 U.S. Supreme Court ruling of Lawrence v. Texas rendered the Virginia anti-sodomy law unconstitutional.

“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for ten years after the Supreme Court held that such laws are unconstitutional,” said Rebecca Glenberg in a statement on behalf of the ACLU of Virginia. The ACLU filed a friend-of-the-court brief supporting MacDonald’s appeal.

“This ruling brings an end to such prosecutions,” she said

The New York-based gay litigation group Lambda Legal Defense and Education Fund also submitted a friend-of-the-court, or amicus, brief on MacDonald’s behalf, according to a notation on the federal appeals court’s 30-page opinion.

A spokesperson for Lambda couldn’t immediately be reached for comment.

“In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment,” said the majority opinion in Tuesday’s appeals court ruling.

Judge Robert King, who wrote the majority opinion, and Judge Diana Gribbon Motz, who joined King in the ruling, rejected arguments by the Virginia Attorney General’s office and rulings by two lower courts that the Lawrence decision didn’t apply to cases involving minors.

King noted in his opinion that current Virginia law, under the parameters of the Lawrence decision, can only prohibit an adult from soliciting sodomy from someone under the age of 15, which is the legal age of consent in the state.

“Thus, although the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so,” he wrote in his opinion.

Brian Gottstein, a spokesperson for the Virginia Attorney General’s office, told the Richmond Times Dispatch the office “was reviewing the decision and will consider our options.”

The Times Dispatch reported that MacDonald and his wife have since moved to North Carolina. The paper reported that the wife, Carolynn MacDonald, said her husband is a combat veteran suffering from post-traumatic stress disorder.

“He’s enjoying today, but having a difficult time with it,” the Times Dispatch quoted her as saying.

In its summary of the background of the case, the 4th Circuit Appeals Court opinion states that it was MacDonald who triggered an investigation that led to his arrest. It cites trial court records as showing the 17-year-old girl turned down MacDonald’s request that she perform oral sex on him and appeared to let the matter drop.

But according to court records, MacDonald later called the police to report that the 17-year-old solicited him for sex. In an official police report, he told a detective that the 17-year-old “forcibly removed his penis from his pants and performed oral sex against his will.”

After interviewing the 17-year-old, the detective determined that her strong denials that she sought to have sex with MacDonald had far more credibility than MacDonald’s allegations. The detective obtained warrants for MacDonald’s arrest, starting the chain of events that led to Tuesday’s court ruling overturning the state sodomy law.

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

  • I used to be addicted to men, but 7 years ago Jesus set me FREE!(YouTube video) I made the switch from being married to my first wife by ditching her and our 2 sons to go into the gay life-choice. Today I am FREE, DELIVERED and married to a beautiful woman of God. I won't go back! ALL HAIL KING JESUS!

    • Okay, let me see if I am hearing this right. You claim you used to be gay but chose to be straight through some magic mojo. When did this occur? About the time you realized you were too old to get laid in the gay community or was it when you realized how much money your loser life could get by claiming this lie? Dude, I KNOW BETTER, YOU KNOW BETTER, AND WORST OF ALL YOU ARE PROFITING OFF OTHERS WITH YOUR LIES. Go sit down, nobody in their right mind believes this bs.

  • … the logic is simple, the right of consenting adults to seek their mutual pleasures as they wish. NO state interest at all. Shut the bedroom door to the police.

  • Just one more reason to drive around the state rather than through it. I already won't spend any money there but the very thought that even sales tax on a cup of coffee might help keep this type hate alive makes me sick.

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