October 7, 2013 at 5:47 pm EDT | by Lou Chibbaro Jr.
Supreme Court denies Cuccinelli appeal of Va. sodomy law ruling
Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

The high court declined to hear a case brought by Virginia Attorney General Ken Cuccinelli related to the commonwealth’s sodomy law. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court on Monday denied a petition by Virginia Attorney General Ken Cuccinelli seeking to appeal a lower court ruling declaring the state’s Crimes Against Nature or sodomy law unconstitutional.

By refusing to hear the case, the high court allowed a decision in March striking down the law by the Fourth Circuit U.S. Court of Appeals in Richmond to stand, ending efforts by Cuccinelli and other officials to get the state’s ban on oral and anal sex between consenting adults reinstated.

“Under any circumstances this is definitely a victory and it’s a good one,” said Claire Gastanaga, executive director of the ACLU of Virginia. “It puts to rest this idea that somehow you can have a statute that’s found unconstitutional but you can still be prosecuted under it.”

Gastanaga was referring to the Supreme Court’s landmark 2003 decision of Lawrence v. Texas that overturned state sodomy laws. A three-judge panel of the Fourth Circuit Court of Appeals cited the Lawrence decision as the basis for its decision in March to overturn Virginia’s Crimes Against Nature statute, saying it could no longer be enforced under any circumstances.

Cuccinelli has contended that the Lawrence decision doesn’t apply to cases involving sex between adults and minors. As a candidate for governor, Cuccinelli launched a special campaign website earlier this year claiming removal of the sodomy law would prevent law enforcement officials from prosecuting “child predators.”

LGBT rights attorneys have disputed that claim, saying existing state laws enable police and prosecutors to arrest and prosecute anyone who sexually abuses a minor.

The Fourth Circuit appeals court decision struck down a felony conviction by a judge in the city of Colonial Heights, Va., of a 47-year-old man for soliciting oral sex from a 17-year-old woman. Although no sex took place, the defendant, William Scott MacDonald, had been charged with soliciting someone to commit a sexual act that his attorneys argued was no longer illegal under the Lawrence decision.

In its 2-1 ruling, the appeals court panel declared that the Lawrence decision invalidated the Virginia Crimes Against Nature law as “facially” unconstitutional, preventing it from being enforced, even in cases of consensual sodomy between an adult and a minor if the minor is between the ages of 15 and 18. The judges noted that the age of sexual consent in Virginia is 15.

Cuccinelli’s office issued a statement on Monday saying the elimination of the sodomy law “puts tools prosecutors need to protect children in jeopardy.”

According to the statement, Cuccinelli’s efforts to keep the law on the books “was never about sexual orientation or private acts between consenting adults” but instead was about enabling law enforcement officials to “prosecute child predators.”

Attorneys familiar with the case — including prosecutors in Arlington and Alexandria — have said existing state laws give law enforcement officials the ability to prosecute all cases of forcible or coerced sex between an adult and a minor as a felony. They say that heterosexual intercourse between a minor within the age range of 15 through 17 and an adult can still be prosecuted as a misdemeanor. But with the elimination of the state sodomy law, consenting oral or anal sex among minors — gay or straight — between age 15 and 17 and an adult is fully legal and can’t be prosecuted until or unless the legislature changes the law.

Gastanaga and others familiar with Cuccinelli’s concerns have called on the Virginia General Assembly to revise the existing laws addressing the age of consent or sex with minors in a way that doesn’t violate the Constitution as spelled out in the Lawrence decision.

“That means you’ve got to do the hard work of getting together with the Commonwealth’s Attorneys and public defenders and other criminal defense lawyers and legislators and people like us and try to work out something that does address what you want to address, which is sexual activity that is not constitutionally protected,” Gastanaga said.

James Parrish, executive director of the statewide LGBT group Equality Virginia, said his organization would not oppose legislation that reforms existing laws to address potential problems resulting from the striking down of the sodomy law.

“This is something the Supreme Court decided now more than 10 years ago,” Parrish said. “We understand that the attorney general and others have some concerns of how the sodomy law was intertwined with other laws. They have had 10 years to make those laws more clear and we would hope they would work with the General Assembly to address these concerns” in a way that doesn’t violate the Lawrence decision’s protections pertaining to consenting adults, he said.

Although Cuccinelli criticized his Democratic opponent, businessman Terry McAuliffe, for expressing support for overturning the Virginia sodomy law, McAuliffe was leading Cuccinelli by a 42 to 37 percent margin in one of the most recent public opinion polls conducted by Virginia’s Hampton University.

Josh Schwerin, McAuliffe’s press secretary, said Cuccinelli demonstrated “an extreme agenda and uncompromising approach” by refusing in the past to support legislation to update Virginia’s laws to conform to the Supreme Court ruling on sodomy.

“Everyone supports strong laws to protect children and, like most Virginians, Terry believes our law should be updated to both conform with court rulings and allow prosecution of predators,” Schwerin said. “As he admitted as recently as 2009, Ken Cuccinelli is one of the only elected officials in America who believes that being gay should result in criminal prosecution and jail time,” he said.

Under the Supreme Court’s rules, at least four of the court’s nine justices must vote to hear a case in order for the court to consider a case on its merits. The court never discloses how individual justices vote or what the vote count was when it decides whether or not to take a case.

However, in August Supreme Court Chief Justice John Roberts issued a ruling denying a separate petition by Cuccinelli asking the court to put a stay on the Fourth Circuit Court of Appeals ruling striking down the Virginia sodomy law until the Supreme Court decided whether or not to take the case. Roberts did not issue an explanation for denying Cuccinelli’s request for a stay.

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

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