Constitutional Law

Virginia AG defends state's anti-sodomy law, seeks stay of 4th Circuit ruling

Corrected: Virginia Attorney General Ken Cuccinelli is defending his state’s anti-sodomy law in the prosecution of a man accused of demanding oral sex from a 17-year-old girl.

Cuccinelli has asked the U.S. Supreme Court to hear an appeal of a 2-1 March decision (PDF) overturning the law by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, the Associated Press reports. His application for a stay pending appeal was opposed in papers filed Monday by lawyers for the defendant, William Scott MacDonald.

MacDonald was convicted of violating the state’s solicitation statute, which makes it a felony for an adult to order a person under 18 to commit a felony. The predicate felony in the case was violation of the state law criminalizing “crimes against nature.” He claimed that the Supreme Court’s ruling in Lawrence v. Texas had invalidated all state anti-sodomy laws. The 4th Circuit agreed in MacDonald v. Moose that the Virginia anti-sodomy law is unconstitutional as applied to any person.

Cuccinelli claims Lawrence v. Texas did not apply to sex acts between adults and minors. Lawyers for MacDonald disagreed. “Lawrence’s observation that its holding would permit states to criminalize such activity could hardly be understood as an invitation to the states to continue enforcing the same general, anti-sodomy statutes, as before, but to be more choosey about their targets,” they wrote.

Cuccinelli has cast the Virginia law as a child protection measure in a new website, Keep Virginia Kids Safe, report Salon and Mother Jones.

Updated at 10:49 a.m. to correct the headline to refer to the 4th Circuit.


Updated at 10:49 a.m. to correct the headline to refer to the 4th Circuit.

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