Virginia Attorney General Ken Cuccinelli, who is also the Republican candidate for governor of that state, launched a website this week in support of his efforts to reinstate the Commonwealth’s “crimes against nature” law. Though the law, which was found unconstitutional, bans oral and anal sex between consenting adults, Cuccinelli swears that his only motivation is to protect children from sexual predators. His new website, www.VAChildPredators.com, includes a map of the state with teardrops marking the location of 90 sexual predators. The website asserts that unless this law is upheld, these offenders will come off the list, endangering children all over Virginia.
Some aspects of the law in question deal with prostitution, public sex, and acts other than those between consenting adults. Other sections, however, clearly make certain, common, sexual behaviors criminal regardless of who is involved. The law reads, in part, “If any person carnally knows in any manner any brute animal, or 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 Class 6 felony.”
Anti-sodomy laws such as this one often have been used against homosexual men engaging in consensual sex. In the 2003 case Lawrence v. Texas, the U.S. Supreme Court found these laws to be an unconstitutional violation of the due process clause. Like many states, Virginia kept its law on the books despite this ruling. In 2004, there was a bipartisan effort in the Virginia general assembly to rework the law—by keeping the parts dealing with prostitution and nonconsensual sex but removing the others—to bring it in line with the Lawrence decision. Cuccinelli, who served in the state senate at the time, voted against these changes.
The state continued to prosecute adults under some provisions of the crimes against nature law until last March, when a three-member panel of the United States Court of Appeals for the Fourth Circuit struck down the law as unconstitutional in a case involving a 47-year-old man who had sex with a 17-year-old girl. The court found that since the law was unconstitutional in all circumstances, it could not be used to convict the 47-year-old. As attorney general, Cuccinelli filed a petition asking for the full 15 members of the court to review the decision. The petition argued that “a reasonable state court could conclude that Lawrence did not wholly invalidate Virginia’s sodomy statute.”
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This is essentially the argument Cuccinelli continues to make as he runs for governor. He is suggesting that only the crimes against nature law can possibly protect young people against sexual predators and that as such it needs to be reinstated. It is unclear how he plans to get past the law’s unconstitutionality, nor is it clear why he is not instead working to create new laws with the same goals. Cuccinelli says that his intention is not to use the law against consenting adults, but ThinkProgress points out that it’s hard to take him at his word given his past comments on homosexuality in particular. In 2009, Cuccinelli told a newspaper, “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.”
Playing up parents’ fears of sexual predators may get Cuccinelli some support—perhaps until those same parents realize the law could make aspects of their own sex lives illegal.