Breaking: 4th Circuit Strikes down VA Sodomy Laws
A long-standing “Crimes against Nature” law, which criminalized anal and oral sex in the Commonwealth, has been found unconstitutional by the 4th Circuit Court of Appeals.
Though the US Supreme Court struck down sodomy laws nationally in 2003, the VA ACLU said Virginia had been using broad sodomy laws to prosecute people for constitutionally protected conduct. “You have to have statutes that are narrowly targeted to the criminal conduct and that don’t encompass a great deal of constitutionally protected conduct,” said VA ACLU Lawyer Rebecca Glenburg.
For example, said Glenburg, a state cannot make all sex illegal, and then charge someone who’s having sex with a minor for “having sex.”
Glenburg said Virginia prosecutors had been using the sodomy law to “prosecute people who were accused of engaging in oral or anal sex with minors, or soliciting in public.” And when challenged, the VA courts said there was no standing to challenge the law because the specifics of the 2003 Lawrence V. Texas law dealt with consenting adults. “Since you have no standing to challenge the law, you can be convicited under it,” said Glenburg.
Because the 4th circuit hadn’t taken a case like this before, the certainty of the court striking down the law was in question, according to Glenburg. But after hearing arguments in the case, she was reassured that it would be struck down.
The case that made its way to the 4th district, MacDonald V. Virginia, details William MacDonald’s vaginal intercourse and oral sex with 2 fellow Volunteer firefighters from 2002-2004. The sex was consensual, however the two girls MacDonald engaged with were 16 and 17.
The age of consent in Virginia is 15, but the public nature of where the sex acts took place complicated the issue. In 2005, Macdonald was found guilty of 4 counts of Sodomy. He was sentenced to 20 years in jail with 17 years suspended.
The New York Times pointed to the complex nature of sodomy laws in an article printed earlier this year:
The possibility of prosecuting teenagers is not fanciful. In 2007, the North Carolina Supreme Court upheld the conviction of a teenager for having oral sex with his girlfriend under a general sodomy law barring what it called “the crime against nature, with mankind or beast.” The couple had also had intercourse, but that was legal.
“This bifurcation leads to a seemingly absurd result,” Daniel Allender wrote in The Duke Law Journal in 2009. “Two minors may lawfully have vaginal intercourse, but they are felons if they have oral sex until reaching maturity.”
That means, Mr. Allender wrote, based on studies of teenage sexual activity, that “nearly half of the teenagers in North Carolina and Virginia are felons.”
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