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Cuccinelli Stuck on Sodomy, May Have a Case Before SCOTUS

By William Peacock, Esq. | Last updated on

On the face of the case, it's easy to dismiss Virginia Attorney General Ken Cuccinelli as a bit of a kook. He is fighting all the way to the Supreme Court to uphold Virginia's overly-broad "Crimes Against Nature" anti-sodomy law, a law that covers oral and anal sex, regardless of consent or age of the participants. His argument is that the statute, while on its face is broad, is only being used to prosecute child predators, a purpose that is consistent with the Supreme Court's holding in Lawrence v. Texas.

The lower courts agreed with him, somewhat, and held that the defendant, William MacDonald, could not challenge the law, as it was not unconstitutional, per Lawrence, as applied to him -- he was a 47-year-old soliciting oral sex from a 17-year-old. The Fourth Circuit reversed, and granted habeas relief, finding the statute to be unconstitutional on its face, as it was nearly word-for-word the same as the statue approved in Bowers, but later explicitly repudiated in Lawrence.

AEDPA Deference

Despite being denied a stay by the Supreme Court last week, there is still grounds for the Court to grant certiorari when they consider the petition in the fall. As we pointed out before on our Fourth Circuit blog, the Antiterrorism and Effective Death Penalty Act requires that appeals courts show deference to the state courts' judgments, unless those judgments are contrary to clearly-established federal law.

Were the other courts' rulings so unreasonable as to justify the lack of deference here? Dicta in Lawrence mentioned that the court was not considering situations where the victim was a minor, or did not consent.

Combine that with the ambiguity in Ayotte, where the Court held that statutes with unconstitutional provisions should have as much of the statute saved as possible -- so long as such excision is not unreasonably complicated -- and a case can be made that the Fourth Circuit overstepped their bounds in overruling an arguably reasonable set of lower court rulings.

The Right Answer

Ayotte and Lawrence dicta aside, just rewrite the statute. Though many poke fun at the fact that Cuccinelli was part of the coalition that defeated a previous effort to rewrite the statute (immediately post-Lawrence), Kevin Walsh, on his blog, points out that the rewrite made nonconsensual or with-a-minor sodomy a mere misdemeanor, not a felony, which may provide some insight as to why the rewrite was defeated.

If the state does rewrite the statute, we'd advise them to do their best to avoid the absurd outcomes that presently exist.

Because Virginia's age of consent is 15, Slate points out that under the current set of laws, a 15-year-old can have sex, but cannot have oral or anal sex with their significant other, without becoming a felon. That's a harsh result for gay teens and those who would rather stick to "third base" than rush into intercourse at a young age.

We'd also note that the current statutes allow a certain creepy 47-year-olds to have vaginal sex with a 17-year-old, but not to ask for, and be denied, oral sex. Surely, that is not what the reverend lawmakers intended.

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