RICHMOND — Attorney General Ken Cuccinelli II filed an appeal Tuesday to the U.S. Supreme Court aimed at preserving Virginia’s anti-sodomy law.
Cuccinelli, a Republican running for governor, asked the court to overturn a March decision by the 4th U.S. Circuit Court of Appeals to strike down the law, which had been used in 2005 to convict a 47-year-old man of soliciting oral sex from a 17-year-old girl.
The appeals court ruled that prosecutors could not use Virginia’s “Crimes Against Nature” statute to convict William Scott MacDonald because the Supreme Court had, in a landmark 2003 ruling, invalidated sodomy statutes that criminalize sexual activity between consenting adults. Virginia's statute outlaws all acts of oral and anal sex.
Cuccinelli acknowledged that since the Supreme Court’s 2003 decision, the law cannot be used against consenting adults engaged in private sex acts. But he said the law remains a useful tool for prosecutors seeking to obtain felony convictions against sexual predators. Without the sodomy statute, a simple solicitation charge would have been a misdemeanor, according to Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia.
“The law is only applied to offenses committed against minors, against non-consenting or incapacitated adults, or in public,” Cuccinelli said. “It is not — and cannot be — used against consenting adults acting in private.”
Gastanaga said that instead of trying to preserve the sodomy statute, Cuccinelli should encourage Virginia lawmakers to strengthen penalties against sexual predators.
“You can’t use an unconstitutional law to prosecute people,” she said. “Go get yourself a constitutional law.”