Shortly after the Supreme Court rejected Virginia Attorney General Ken Cuccinelli’s (R) effort to revive parts of his state’s anti-sodomy law, Cuccinelli’s office emailed a statement to reporters claiming that prosecutors have been “using this law to protect minors from predatory adults.” The lower court’s decision striking the law, the Attorney General’s office warned, “puts tools prosecutors need to protect children in jeopardy,” adding that nearly 90 “sexual predators” could be deregistered as sex offenders.
The full story, however, is far more nuanced, and it significantly undermines Cuccinelli’s effort to paint himself as a crusader for children. The truth is that Cuccinelli himself, along with the Republican candidate now running to replace him as attorney general, both played a significant role in undermining Virginia’s ability to prosecute sexual predators. As state lawmakers, both men put their personal opposition to homosexuality and gay sex above Virginia’s need to combat genuine sex crimes. And both men were part of a much greater effort to keep an unconstitutional law on the books.
In 2005, William Scott MacDonald was convicted, under Virginia’s Crimes Against Nature law, of soliciting a 17-year-old female for oral sex — a felony under the law and not his first conviction under the same statute. Because that law — first enacted in 1950 to prohibit oral and anal sex, as well as bestiality — has not been updated since a 2003 Supreme Court ruling struck down sodomy laws, it was overturned this year. The convictions of other sexual offenders and child predators may also be now at risk.
Though both have made fighting sexual predators a key campaign issue, the Republicans nominees in next month’s Virginia Gubernatorial and Attorney General elections — Cuccinelli and Mark Obenshain (R), respectively — are among those who bear responsibility for allowing this to happen, having toed the line of the state’s most prominent Christian Right organization.
While rarely enforced in the modern era to prosecute the private behavior of consensual adults, Virginia Crimes Against Nature law was long used as an excuse to discriminate against gay and lesbian Virginians. In the late 1990s and early 2000s, state legislators repeatedly attempted to amend the Crimes Against Nature law to exclude oral and anal between consenting adults, or to at least reduce crimes from felony to misdemeanor.
The leading opponent of such changes was a Richmond-based anti-LGBT group called the Family Foundation of Virginia. The group’s legislative scorecards rewarded legislators who opposed such changes and punished their backers. Their website in 2001 identified keeping the sodomy ban unchanged as a “priority.”
The U.S. Supreme Court’s 6 to 3 Lawrence v. Texas ruling, authored by Justice Anthony Kennedy in 2003, held that adult couples are “entitled to respect for their private lives,” and that states “cannot demean their existence or control their destiny by making their private sexual conduct a crime,” as “their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” As a result, sodomy laws like Virginia’s were deemed unconstitutional. The Family Foundation’s Victoria Cobb blasted the Supreme Court for giving “homosexual activists the opening they have been seeking to impose their agenda on the people of Virginia.” Republican Delegate Bob Marshall called the ruling “cultural suicide” by justices wearing “the black robes of death.”
When the Virginia Crime Commission (a group made up of members of the state legislature, gubernatorial appointees, and the state’s attorney general) met later that year to decide how to address the Lawrence ruling, the panel’s Republican majority balked at removing the unconstitutional consensual sodomy ban from the code. Two Senators who served on the commission at the time recalled to ThinkProgress that the panel’s chairman, Delegate David Albo (R), grew frustrated with conservative opposition and sarcastically proposed perhaps there should be a special section in Virginia’s legal code for things that are unconstitutional but that people want to keep on the books anyway. Albo did not respond to multiple requests for comment, but told the Washington Post at the time that the commission did not want to change the statute while cases were still pending in the courts.. The Republican-dominated panel recommended that the unconstitutional Crimes Against Nature law (§ 18.2-361) be left on the books but that a new section (§ 18.2-361.1) be added to specifically criminalize “sodomy that occurs in a public place.” The 13-person crime commission making that recommendation included now-Gov. Bob McDonnell (R) and now-U.S. Congressman Morgan Griffith (R). The Family Foundations’ Cobb lauded the move to “repair the damage done by the Lawrence vs. Texas decision without repealing the Commonwealth’s longstanding crimes against nature statue” as “a victory for traditional families.” She added, “The citizens of Virginia have long supported keeping this statute, and the commission has responded to those people.”
In January 2004, Albo proposed a bill to implement the Crime Commission’s recommendations. Its official summary explained, “Without repealing the existing crimes against nature statute, the bill proposes a new statute that will ensure that such behavior is illegal when committed in a public place.” It passed the House on a 97 to 1 vote, but stalled in the moderate Senate Courts of Justice Committee where a majority of members were uncomfortable leaving unconstitutional provisions on the books.
Senator Patsy Ticer (D) proposed a simpler approach. Her bill, also filed in January 2004, sought to add an amendment to the old law to make it clear that it “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution.” The Ticer bill was endorsed by the committee on a bipartisan 9 to 6 vote. Voting yes were committee chairman Ken Stolle and two other Republican Senators. Voting no were then-Sens. Ken Cuccinelli and Mark Obenshain. Both received 100 percent ratings from the Family Foundation of Virginia for their voting in that session — and both would later receive the group’s “Legislator of the Year” award.
Ticer, now retired, told ThinkProgress that the Family Foundation’s opposition was a major factor in blocking her bill, “They had a lot of influence and have a lot of influence.” Stolle, now Virginia Beach Sheriff, concurred, adding that “a number of members” of the committee “were afraid the Religious Right would see it as weakening their opposition to homosexual activities and that nature.” Recognizing that there was not enough support for Ticer’s bill to get it through the full Republican-controlled Senate and the more-conservative Republican-controlled House of Delegates, Stolle sent the bill back to committee and left both Ticer’s bill and Albo’s there for the year. Ticer’s 2005 attempt to revive the bill failed and, to date, the Virginia General Assembly has still taken no action to update the Crimes Against Nature law.
While it was widely acknowledged that, statute or no, the Supreme Court’s ruling rendered the consensual private adult sodomy provisions unenforceable, Virginia prosecutors continued to rely on the other provisions of the statute to charge accused sex criminals. Louisa County Commonwealth’s Attorney Rusty McGuire, a self-described conservative Republican, told ThinkProgress that dozens of other Virginia laws reference and rely on the Crimes Against Nature law, including laws banning online solicitation of minors and child molestation. After the 4th U.S. Circuit Court of Appeals in Richmond ruled that the law and William Scott MacDonald’s conviction were unconstitutional, under Lawrence, McGuire warned that the “unintended consequence of this ruling has created a void: it’s open season on children. The status of all these laws now in jeopardy.” McGuire noted several Internet predators he personally prosecuted could challenge their convictions and “every single one of those cases in jeopardy now.”
Ironically, it fell on now-Virginia Attorney General Ken Cuccinelli II to defend the statute he had refused to update nine years earlier. Though he claimed that his unsuccessful effort to appeal the 4th Circuit’s ruling to the U.S. Supreme Court was not about banning oral sex or criminalizing same-sex couples, in 2009 he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.” Cuccinelli politicized his ultimately unsuccessful appeal by launching a campaign website to highlight the issue — identifying 90 convicted sexual predators in Virginia who he says may now have to be removed from the Sex Offender Registry.
Senator Janet Howell (D), who supported updating the law in 2004 as a Crime Commission member and as a member of the Senate Courts of Justice committee, told ThinkProgress that Cuccinelli and Obenshain’s intransigence undermined their efforts to protect children. “They’re kind of hoisted on their own petard,” she observed.
Senator Adam Ebbin (D), the lone no vote in 2004 in the House of Delegates on Albo’s plan to leave the Crimes Against Nature provisions untouched, agreed. “If Ken Cuccinelli and Mark Obenshain hadn’t been stuck in past centuries, we wouldn’t be in the situation we’re in,” he told ThinkProgress. Both expressed optimism that the General Assembly would repeal the law once-and-for-all and replace it with a constitutional framework when it convenes in Janaury. “Virginia’s sodomy law is overdue for modification,” Ebbin noted. “Private consensual sex between adults should obviously not be wrapped in the Virginia code. But statutory rape, rape, and incest should continue to be illegal. The code is outdated and failure to update it would be a big mistake.”
The Family Foundation’s Cobb did not respond to a ThinkProgress inquiry about why her group has fought to keep oral and anal sex as a felony in Virginia, but the group featured Cuccinelli and U.S. Senator Ted Cruz (R-TX) this month at its annual fundraising gala. Table sponsors received free copies of Cuccinelli’s book.
Stolle, who in his new role as a law enforcement officer must enforce the laws, added, “hindsight’s always 20/20, but we should have updated it.” “The inaction of the General Assembly,” he lamented, “caused this [statutory rapist] to go free.”