A new Virginia bill would bring back much of Virginia’s infamous “Crimes Against Nature” law, months after federal courts struck down the law as unconstitutional. The proposal, which ostensibly would change the law to make clear that “engaging in consensual sodomy is not a crime if all persons participating are adults, are not in a public place, and are not committing, attempting to commit, conspiring to commit, aiding, or abetting any act in furtherance of prostitution,” would restore felony penalties for minors engaging in oral sex and treat public sodomy differently from other public sex acts.
In 2003, the U.S. Supreme Court’s Lawrence v. Texas ruling held that states may not ban private non-commercial sex between consenting adults. Virginia’s Crimes Against Nature statute, which made oral and anal sex (even between consenting married couples) a felony, was clearly the sort of legislation the Court was referencing. Efforts to amend the law to bring it into compliance with the Supreme Court’s ruling were blocked by anti-LGBT legislators who preferred to keep the unconstitutional law on the books. When a prosecutor used a provision of the law to convict a 47-year-old male for asking a 17-year-old female for oral sex, the defendant successfully challenged the conviction by arguing the statute wholly unconstitutional. After a series of unsuccessful appeals by Virginia Attorney General Ken Cuccinelli II (R), the law remains on the books but unusable.
Senate Bill 14, authored by State Sen. Thomas A. Garrett (R), would “amend and reenact” the law, attempting to use the old law’s language to continue prosecuting cases of anyone who commits “crimes against nature” in public, with minors, with animals, or for money. As a result, this bill would allow oral and anal sex between consenting adults (in the privacy of their own homes) — but would still treat any oral and anal sex in those categories differently from vaginal intercourse, thereby continuing to unfairly distinguish same-sex sexual behavior for harsher punishment.
Back before the courts ruled the old language unconstitutional, LGBT and civil liberties advocates backed the incremental step of amending the law to protect consenting gay and straight adult couples from prosecution for their sexual relationships. But now that the Crimes Against Nature statute has been rendered unenforceable, this new version would represent a step backwards.
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia and a former chief deputy attorney general of Virginia, told ThinkProgress that her group opposes Garrett’s bill in its current form. “We would oppose it, unequivocally, because it leaves in place discriminatory treatment and doesn’t address the underlying problem that LGBT people are treated differently than folks that have other kinds of sex.” She notes that under Virginia law, anyone who encourages or asks another to commit a felony is automatically guilty of a felony. As such, while an adult having consensual vaginal intercourse with a 16- or 17-year-old would be a misdemeanor, an adult simply asking a 17-year-old for oral sex would be a Class 5 felony.
Oddly, Virginia law permits heterosexual 16 or 17 years old to marry, with parental consent (couples can marry earlier in cases where the girl is pregnant). Under Garrett’s bill, two 17-year-olds could be legally wed but would both become felons if they engaged in oral sex — or even suggested doing so. And with Virginia’s marriage inequality constitutional amendment, a 17-year-old same-sex couple would not only be unable to marry, but would each be guilty of a felony if they engaged in any sexual relations at all.
And the law’s disparate treatment of those engaging in public sex (a misdemeanor, at most) and those engaging in public oral and anal sex (a felony under the Crimes Against Nature law) would also be a concern. A same-sex couple spotted by law enforcement in a park, engaged in oral sex, would be each be guilty of a felony — while an opposite-sex couple having vaginal sex in the same park would not.
As such, Gastañaga said that she believes the revised sodomy law would still not pass constitutional muster, due to its discriminatory effect on same-sex couples. “If we want true reform,” she notes, “we want clarity in the law that treats sex as sex, so the rules are the same for everybody.”
The Virginia Senate convenes Wednesday for a 60-day legislative session. The bill will be considered by the Senate’s Court of Justice committee over that time.
Garrett, who calls himself a “Cuccinelli Conservative,” ran for Senate in 2011 with the endorsement of the founder of the Family Foundation — the anti-LGBT group that long led the effort to keep the old law making private consensual adult sodomy a felony. Garrett did not immediately respond to a ThinkProgress inquiry about the bill.