In 2003, as surely everyone knows, Virginia’s archaic and nearly universally ignored “Crimes Against Nature” law was rendered unconstitutional by the Supreme Court in Lawrence v Texas. Because it is unconstitutional, because it is a blanket prohibition of oral and anal sex for everyone, it can’t be used to prosecute anyone. Case in point: When the law was used in 2005 to prosecute a 47-year-old man for soliciting a 17-year-old girl to perform oral sex, the conviction was overturned.
That outcome was perfectly predictable – and avoidable. In 2004, there was a bipartisan effort in the Virginia legislature to fix the law by eliminating the part that makes it unconstitutional:
§ 18.2-361. Crimes against nature.
A. Any person who (i) carnally knows in any manner any brute animal is guilty of a Class 6 felony, or (ii) carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, is guilty of a Class
6 felony3 misdemeanor, except as provided in subsection B. B. The provisions of clause (ii) of this subsection 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.
and leaving in place a statute that would be viable in the prosecution of adult predators:
§ 18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant.
Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228, or (ii) engages in consensual sexual intercourse with a child 15 years of age or older not his spouse, child, or grandchild,
shall beor (iii) engages in consensual carnal knowledge by the anus or by or with the mouth or the voluntary submission to such carnal knowledge with a child 15 years of age or older not his spouse, child, or grandchild, is guilty of a Class 1 misdemeanor.
Had these changes been adopted, the 2005 conviction would never have been appealed and overturned. Virginia already has laws criminalizing statutory rape and other sexual acts between an adult and a child under 15, and this would have been an easy fix.
But, no. Ken Cuccinelli vigorously opposed bringing this law into conformity with the Constitution and protecting vulnerable adolescents, and has done nothing to address the issue in the intervening decade. Now, under the comically inappropriate headline “Keep Virginia Kids Safe,” Ken Cuccinelli is trying to reinvent this useless, dead-in-the-water statute as an “anti-child predators law” for his gubernatorial campaign. “It’s about using current law to protect a 17-year-old girl from a 47-year-old sexual predator,” insisted his spokesperson.
In fact, this “current law” could not be more different from an “anti-child predators law.” It remains on the books – precisely because of Cuccinelli’s own obstructionism – as a get-out-of-jail-free card for certain sexual predators not prosecutable under other Virginia law. If any more individuals convicted under this unconstitutional law are able to have their convictions overturned and their names removed from Virginia’s sex offender registry, the blame lies entirely with Mr. Cuccinelli and his reckless allies. They have had ten years to correct any inadequacies in the law protecting adolescents, and have utterly failed to do so. “You can’t use an unconstitutional law to prosecute people,” [Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia] said. “Go get yourself a constitutional law.” How hard is this?
We can only conclude that Ken Cuccinelli does not want – for some reason – these victims of sexual predators empowered to hold their abusers accountable. It’s almost as if he wanted these offenders eligible to have their convictions overturned. The obvious and usual reason suggested for this is his irrational interest in policing the sexual relationships of consenting adults. However, there are concurrent debates over sexual predator law elsewhere that suggest other reasons for his desire to keep this impotent law on the books. His allegiance to an enabler of massive child sexual abuse deserves more attention.