Cuccinelli Fights to Uphold VA Sodomy Law: Is He Right?

By William Peacock, Esq. on April 04, 2013 | Last updated on October 22, 2019

Last month, we brought you the tale of attempted sodomizer and legal pioneer William MacDonald. Old MacDonald, at age 47, requested oral sex from a 17-year-old girl, then accused her of rape after she denied his advances. He was convicted under Virginia's "Crimes Against Nature" anti-sodomy statute. To recap, that statute reads:

If any person ... carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]

It also wasn't his first conviction under the statute. He had four prior known acts (with a 16-and 17-year-old) resulting in two convictions and two failed attempts at facial challenges to the statute in light of the Supreme Court's holding in Lawrence.

The Fourth Circuit took his side and found the law unconstitutional. In doing so, they rejected the state courts' attempts to narrow the statute to situations involving a minor, citing separation of powers arguments and Ayotte.

Ken Cuccinelli, the Virginia Attorney General and candidate for governor, asked the Fourth Circuit to rehear the case earlier this week - and his legal arguments are actually pretty strong.

It all begins with the procedural history of the case. This was a habeas petition, which thanks to the Antiterrorism and Effective Death Penalty Act, requires that the federal court defer to the state courts' judgment unless the state court's rulings are contrary to clearly established federal law.

Now, one might think that Lawrence v. Texas is pretty clear. However, the court in that case either ruminated on what the case involved (per the Fourth Circuit panel majority) or limited the holding (per the dissent and Cuccinelli). Those ruminations/limitations included the note that the case did not apply to nonconsensual acts or acts involving minors.

So, was Lawrence limited to only consensual acts amongst adults, or was that simply unimportant dicta? Some have argued that Lawrence was only an as applied holding to those specific facts. The Fourth Circuit's MacDonald majority, however, pointed out that the Lawrence court explicitly rejected their prior holding in Bowers, which upheld Georgia's anti-sodomy statute that was nearly identical to Virginia's.

Is that repudiation of their prior holding enough to clearly establish that any anti-sodomy statute is invalid?

The other interesting point made by the MacDonald dissent and Cuccinelli is that the court may have been misreading Ayotte. The general rule is that statutes will be upheld, and unconstitutional provisions stricken, unless doing so would be overly complicated. Cuccinelli argues that this is far from complicated - it merely limits application of the statute to nonconsensual conduct. The dissent stated that the court's reading of Ayotte "effectively turn[ed] the normal rule of partial, rather than facial invalidation on its head."

Between AEDPA deference in habeas petitions, any murkiness in the Lawrence holding, and the issue of facial versus partial invalidation of statutes, Cuccinelli might have enough to convince the Fourth Circuit to rehear the case.

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