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Supreme Court denies Cuccinelli appeal of Va. sodomy law ruling

Action upholds lower court ruling striking down law

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Ken Cuccinelli, Virginia, gay news, Washington Blade
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.

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2 Comments

2 Comments

  1. Linda Petrone

    October 8, 2013 at 8:52 pm

    Oh Virginia…your village idiot is loose!!!

  2. Anonymous

    October 8, 2013 at 10:11 pm

    and yet another Republican going after what consenting adults, both gay and straight do in the bedroom………..such a waste of time and money……..

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In plea deal, D.C. trans woman’s killers could be free in 3 years

Two in 2016 killing of Dee Dee Dodds guilty of voluntary manslaughter

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Deeniquia Dodds, gay news, Washington Blade
Deeniquia ‘Dee Dee’ Dodds was killed on July 4, 2016. (Photo via Facebook)

A D.C. LGBTQ anti-violence group will be submitting a community impact statement for a D.C. Superior Court judge scheduled to sentence two men on Dec. 10 for the July 4, 2016, shooting death of transgender woman Deeniquia “Dee Dee” Dodds in a case D.C. police listed as a hate crime.

Stephania Mahdi, chair of the D.C. Center for the LGBT Community’s Anti-Violence Project, told the Washington Blade the project has been in contact with the Office of the U.S. Attorney for D.C., which is prosecuting the case against the two defendants set to be sentenced this week, to arrange for the submission of a statement on the impact the murder of Dodds has had on the community.

The impact statement would also apply to the sentencing of two other men charged in the Dodds murder case who are scheduled to be sentenced on Dec. 20.

The Dec. 10 sentencing for Jolonta Little, 30, and Monte T. Johnson, 25, was set to take place a little over two months after Little and Johnson pleaded guilty on Sept. 30 to a single count of voluntary manslaughter as part of a plea bargain deal offered by prosecutors.

In exchange for the guilty plea for voluntary manslaughter, prosecutors with the U.S. Attorney’s Office agreed to drop the charge of first-degree murder while armed originally brought against the two men. The plea agreement also called for dropping additional charges against them in connection with the Dodds murder, including robbery while armed, possession of a firearm during a crime of violence, and unlawful possession of a firearm.

In addition, the plea agreement includes a promise by prosecutors to ask D.C. Superior Court Judge Milton C. Lee, who is presiding over the case, to issue a sentence of eight years in prison for both men. Under the D.C. criminal code, a conviction on a voluntary manslaughter charge carries a maximum sentence of 30 years in prison.

Johnson has been held without bond for five years and three months since his arrest in the Dodds case in September 2016. Little has been held without bond since his arrest for the Dodds murder in February 2017. Courthouse observers say that judges almost always give defendants credit for time served prior to their sentencing, a development that would likely result in the two men being released in about three years.

The plea deal for the two men came two and a half years after a D.C. Superior Court jury became deadlocked and could not reach a verdict on the first-degree murder charges against Johnson and Little following a month-long trial, prompting Judge Lee to declare a mistrial on March 6, 2019.

The two other men charged in Dodds’ murder, Shareem Hall, 27, and his brother, Cyheme Hall, 25, accepted a separate plea bargain offer by prosecutors shortly before the start of the 2019 trial in which they pled guilty to second-degree murder. Both testified at Johnson and Little’s the trial as government witnesses.

In dramatic testimony, Cyheme Hall told the jury that it was Johnson who fatally shot Dodds in the neck at point blank range after he said she grabbed the barrel of Johnson’s handgun as Johnson and Hall attempted to rob her on Division Ave., N.E., near where she lived. Hall testified that the plan among the four men to rob Dodds did not include the intent to kill her.

In his testimony, Hall said that on the day of Dodd’s murder, he and the other three men made plans to commit armed robberies for cash in areas of D.C. where trans women, some of whom were sex workers, congregated. He testified that the four men got into a car driven by Little and searched the streets for victims they didn’t expect to offer resistance.

D.C. police and the U.S. Attorney’s office initially designated the murder charge against Little and Johnson as an anti-trans hate crime offense based on findings by homicide detectives that the men were targeting trans women for armed robberies. But during Johnson and Little’s trial, Judge Lee dismissed the hate crime designation at the request of defense attorneys on grounds that there was insufficient evidence to support a hate crime designation.

At the request of prosecutors, Judge Lee scheduled a second trial for Johnson and Little on the murder charge for Feb. 25, 2020. But court records show the trial date was postponed to June 22, 2020, and postponed several more times – to Jan 11, 2021, and later to Feb. 17, 2022, due to COVID-related restrictions before the plea bargain offer was agreed to in September of this year.  The public court records do not show why the trial was postponed the first few times prior to the start of COVID restrictions on court proceedings.

Legal observers have said long delays in trials, especially murder trials, often make it more difficult for prosecutors to obtain a conviction because memories of key witnesses sometimes become faulty several years after a crime was committed.

“The D.C. Anti-Violence Project is disappointed to hear about the unfortunate proceedings in the case to bring justice for Dee Dee Dodds,” Mahdi, the Anti-Violence Project’s chair, told the Blade in a statement.

“A plea bargain from first-degree murder to voluntary manslaughter as well as a reduction of years in sentencing from 30 to 8 communicates not only a miscarriage of justice, but a message of penalization for victims who attempt to protect themselves during a violent assault,” Mahdi said. “The continual impact of reducing the culpability of perpetrators who target members of specifically identified communities sends a malicious message to criminals that certain groups of people are easier targets with lenient consequences,” she said.

“As a result of this pattern, the D.C. community has failed to defend the life and civil rights of Dee Dee Dodds and leaves criminally targeted LGBTQ+ community and other cultural identity communities critically undervalued by stewards of justice in the nation’s capital,” Mahdi concluded.  

William Miller, a spokesperson for the U.S. Attorney’s Office, has declined to disclose the reason why prosecutors decided to offer Johnson and Little the plea bargain deal rather than petition the court for a second trial for the two men on the first-degree murder charge.

Attorneys familiar with cases like this, where a jury becomes deadlocked, have said prosecutors sometimes decide to offer a plea deal rather than go to trial again out of concern that another jury could find a defendant not guilty on all charges.

During the trial, defense attorneys told the jury that the Hall brothers were habitual liars and there were inconsistencies in their testimony. They argued that the Halls’ motives were aimed strictly at saying what prosecutors wanted them to say so they could get off with a lighter sentence.

The two prosecutors participating in the trial disputed those claims, arguing that government witnesses provided strong evidence that Johnson and Little should be found guilty of first-degree murder and other related charges.

Before the jury announced it was irreconcilably deadlocked on the murder charges, the jury announced it found Little not guilty of seven separate counts of possession of a firearm during a crime of violence and found Johnson not guilty of five counts of possession of a firearm during a crime of violence.

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Howard County activists and allies hit back at censorship, hate

More than 100 people attended ‘We ARE the People’ rally

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(Photo by Bob Ford)

A diverse crowd of 100 to 200 folks gathered at the Columbia Lakefront on Saturday to attend a rally to push back against censorship in the county’s public schools as well as homophobia and transphobia emanating from a group of conservative parents.

The rally called “We ARE the People” was organized in response to the comments and actions by members of a Maryland-based conservative group “We the People 2” that among other things are anti-masks, anti-vaccinations and are opposed to teaching racial history in the schools. They also oppose two books that are in Howard County Public Schools library shelves: “Gender Queer” and “Lawn Boy.”

Speakers at a We the People 2 rally last month at an Elkridge warehouse condemned the books, which contain LGBTQ characters, as sexually explicit. The group later filed police reports against the Board of Education alleging the books constitute pornography with “graphic sexual content and materials being used and disseminated in public schools,” according to the group’s press release.  A flier announcing this action used the loaded terminology, “We must not allow our children to be abused and victimized.”

Among the speakers at the Elkridge rally was Republican Gordana Schifanelli who is running for lieutenant governor on the ticket with Daniel Cox. Another speaker, George Johnson, a teacher from Baltimore City, was heard on a video of the event saying, “We’re doing God’s work because Marxism, homosexuality and transgenderism is the devil.”

In response, the pro-LGBTQ rally in Columbia announced the following:

We are taking a stance against hate in the community as we raise our voices in support of equity in our schools. Attacks on teachers and school staff have prompted us to stand united and drown out the noise.

In addition, We ARE the People states:

We stand for LGBTQ+ students and educational professionals

Teaching accurate history to our students

Supporting equitable practices in our schools

Providing students with relevant LGBTQ+ media through their school libraries

The two-hour rally, which was attended by several county council members, featured speakers representing a wide swath of community, educational, religious and political organizations. They included: Community Allies of Rainbow Youth (CARY), Black Lives Activists of Columbia (BLAC), Absolutely Dragulous, Howard County Schools, PFLAG-Columbia/Howard County, IndivisibleHoCoMd, Columbia Democratic Club, Howard Progressive Project, Unitarian Universalist Congregation of Columbia (UUCC), HoCo Pride, Progressive Democrats of Howard County, and the Columbia United Christian Church.

Many of the speakers denounced the censorship of materials that are needed by many LGBTQ students. Genderqueer and non-binary students, they point out, are most vulnerable and need affirming literature to help with their development and self-acceptance. The speakers also decried hate speech, which has surfaced again, as well as the opposition to teaching history as it relates to race.

Others argued that the community must not sit back and take it from extremist groups.

“You are all defenders,” said Cynthia Fikes, president of the Columbia Democratic Club, in a fiery speech. “But to succeed a strong defense also needs a strong offense.”

The two books in question were recently the center of controversy in the Fairfax County (Va.) school system. The books were removed in September from the shelves of the high schools pending a comprehensive review following opposition from a parent at a school board meeting. It should be noted that both books were previous winners of the American Library Association’s Alex Awards, which each year recognize “10 books written for adults that have special appeal to young adults, ages 12 through 18.”  

The board established two committees consisting of parents, staff and students to assess the content of the books and make recommendations to the assistant superintendent of instructional services who would make the final determination.

One committee found that “Lawn Boy” includes themes that “are affirming for students” with marginalized identities. “There is no pedophilia in the book,” the committee added. The other committee found that “Gender Queer” depicts “difficulties non-binary and asexual individuals may face.” The committee concluded that “the book neither depicts nor describes pedophilia.” The books were restored to the shelves.

“As this backlash against LGTBQ+ literature demonstrates, we must be ready to stand up and defend the progress we have made,” said Jennifer Mallo, member of the Howard County Board of Education, expressing her own point of view. “We must ensure our elected officials understand and share our values and will fight for our marginalized students.”

The enthusiastic crowd was clearly pleased with the event.

“Today’s rally was meant to inspire our community to take action,” said Chris Hefty, who was the lead organizer of the rally and the emcee. “Action that protects our youth. Action that protects our educators and admins. This action comes in the form of advocacy, communication with elected officials so they know your voice, and through well informed voting to ensure those who represent us are those we know will support us. We shared a message of love, acceptance, and warmth.”

Hefty adds, “The unity we facilitated through this rally was a sight to behold. As the lead organizer I couldn’t have been more pleased! In the future we will be sure to better meet the needs of all our community members. We thank all those in our community for their support and feedback and look forward to accomplishing great things together moving forward.”

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Comings & Goings

Nathanson takes role at Outright Action

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Rikki Nathanson

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected] 

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success. 

Congratulations to Rikki Nathanson on her new position as Senior Advisor – Global Trans Program with OutRight Action International in New York. Nathanson will be based in D.C.  

 “I am absolutely thrilled to be taking on this new role as Senior Advisor in OutRight’s Global Trans Program,” said Nathanson. “I have finally found the perfect fit for me: as a trans woman who has been fighting for equality not only for myself, but for others globally, this position is not only a job, it’s intrinsically part of who I am. So, what better way to live, nurture and grow myself.” 

Nathanson will be working closely with all program staff to ensure a cohesive and intentional approach to gender issues throughout OutRight’s programs, including its approach to gender ideology movements. She will lead new initiatives on gender advocacy and policy change, focused but not limited to legal gender recognition and anti-discrimination legislation and policies.

Prior to this Nathanson was director of housing programs at Casa Ruby in D.C. She has also held a number of other positions including: founder/executive director of Trans Research, Education, Advocacy & Training (TREAT), Zimbabwe; chairperson Southern Africa Trans Forum, SATF, Cape Town, South Africa; executive director, Ricochet Modeling Agency, Zimbabwe; and company secretary for Dunlop Zimbabwe Limited, Zimbabwe. 

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