In an unexpected and questionable move, Virginia Attorney General Ken Cuccinelli asked a federal court last week to reconsider a decision to overturn a portion of the state's ban on sodomy. A 3-judge panel from the 4th Circuit U.S. Court of Appeals ruled the ban unconstitutional by a 2-1 vote last month (on the grounds of, you know, privacy), but Cuccinelli now wants all 15 judges to review the case. This part of the ban affected couples of any sex pairing who engaged in consensual anal or oral sex. If the court decides to reconsider the case, it will hopefully again see how ridiculous and unenforceable the ban was in the first place and uphold their previous decision.
While most items in Virginia's "Crimes Against Nature" statute make sense — bestiality and statutory rape, for example — the odd one out was clearly its ban on two consenting adults engaging in oral or anal sex. In 2003, the Supreme Court ruled in Lawrence v. Texas that individual states may not prohibit private sexual activity between same-sex individuals, though it took Virginia a little longer to repeal its own ban.
A man named William Scott MacDonald brought the issue to court in 2009 due to his 2005 conviction of "commanding ... or otherwise attempting to persuade" a person under 18 to commit a felony. At age 47, McDonald had asked the girl to perform oral sex on him, but she refused. Despite the fact that no sex act occurred, MacDonald was found guilty on the grounds of asking a 17-year-old to perform oral sex, which was banned under Virginia's sodomy law.
While MacDonald did have previous convictions of violating the anti-sodomy law, which carried penalties on the grounds of sexual contact with a minor, he appealed to the court for his latest conviction, which he assumed to be unconstitutional according to Lawrence v. Texas.
However, Cuccinelli disagreed that the Constitution should apply to cases involving a minor. He stated that the dissenting judge was correct in this assertion and thus the case should be revisited.
"We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief," said Caroline Gibson, a spokesperson for Cuccinelli. "So the full court should have the opportunity to decide this matter."
Although Cuccinelli may have great influence on the court's decision to accept his petition to reconsider the case, the federal appeals court in general rarely accepts petitions for rehearing.
Representatives from LGBT-friendly organizations have weighed in on the situation and are prepared to take action, though they do not believe the attorney general's objection will be taken seriously. At the same time as same-sex marriage is becoming a more popular subject in the state, the idea of, say, anal sex between two men is less of an issue.
"We think it's a situation in which everybody agrees that the statute is unconstitutional," said Claire Gastanaga, executive director of the American Civil Liberties Union of Virginia.
James Parrish, executive director of Equality Virginia, agreed, saying they "think the court made the right decision."
Cuccinelli's actions here could have bearing on his decision to run for governor this year, with his formal nomination occurring on May 18 at the Republican Party State Convention. As he struggles to ban consensual sexual acts, the Supreme Court's DOMA and Prop 8 hearings could be a huge step forward for gay and lesbian Americans (who have probably been having sex for years).
"This is just another example of Ken Cuccinelli ignoring the economy and instead focusing on his divisive ideological agenda," said a spokesman for Terry McAuliffe, Cuccinelli's Democratic foe in the gubernatorial race.
The judges of the 4th Circuit will vote on whether to take the appeal after hearing cases opposing reconsideration of their decision.
Clearly, Cuccinelli is going about this issue the wrong way. There still exist laws that protect minors despite this piece of the sodomy ban being overturned, so there is no reason at all that he should bring consensual couples into the matter. Perhaps he knows that the oral and anal sex ban is unenforceable and doesn't expect people to take it seriously, but the fact that it existed at all is stunning. Cuccinelli's actions on this matter are absurd and will surely hurt more people than they help.