Republicans in Virginia are proposing a new “emergency” bill they say is necessary to stop sex offenses but which critics point out would make felons out of teenagers and would serve to partially revive the state’s sodomy ban.
Regular readers will remember that in 2013 Virginia became the state that wanted to revive its sodomy statutes, thanks to several unsuccessful appeals by the then Attorney General (and rabidly anti-gay religious conservative) Ken Cuccinelli. With Cuccinelli to depart from his role as AG this month, we might have thought the campaign was at an end. Sadly not.
Republican State Senator Thomas A. Garrett, good friends with Mr Cuccinelli, has authored a bill that he says would reenact the law, but with a few changes. The bill (S.B. 14) contains much of the language from the original Crimes Against Nature statute but does make clear that the bill doesn’t explicitly ban gay sex. According to the bill summary, the legislation:
Clarifies that engaging in consensual sodomy is not a crime if all persons participating are adults, are not in a public place, and are not committing, attempting to commit, conspiring to commit, aiding, or abetting any act in furtherance of prostitution. The bill states that an emergency exists and it is in force from its passage.
As Garrett has been pointing out to his critics, the legislation as amended would technically allow oral and anal sex in private between consenting adults. The legislation doesn’t make that a crime — in most cases. However, the bill marks oral and anal sex as being different from vaginal intercourse and uses higher penalties for non-vaginal sex when the law is violated. Already, there’s cause for concern. Unfortunately, it gets worse.
While Virginia law allows 16 or 17 year olds to marry, ThinkProgress rightly points out that this bill would make such teenagers felons if they were to engage in non-vaginal sex even in their own homes. Once again, as same-sex couples are not allowed to marry in Virginia at any age, two same-gender teenagers engaging in or asking for sex would therefore be guilty of a Class 5 felony — the same kind of status given to some domestic abuse cases.
What’s more, technically, the bill could make felons of two teenagers even talking about having non-vaginal sex in a manner that could be reasonably deemed as a proposition.
Of course, Garrett is defending the bill as a way to protect children, though his interest all seems to be in boosting a falling conviction rate, which is of course precisely what Cuccinelli argued last year. To understand how we got here and why this legislation is quite so ridiculous, here’s what led to the bill:
The Supreme Court of the United States ruled in 2003 that states cannot ban private sexual acts between consenting adults. This served to make all of America’s sodomy bans unconstitutional, including Virginia’s Crimes Against Nature law that once served to ban oral and anal sex across the board. The law was also used to dole out heavier penalties to sex offenders, such as men who engaged in sexual activity with minors. That application was also rendered constitutionally unsound.
Not ready to let the law die completely, conservative Virginia state lawmakers have prevented the ban from being removed from the books and so there it sits, unenforceable but still written in Virginia state law.
Then, recently, when a 47-year-old man was convicted under that law for propositioning a 17-year-old for oral sex, the defendant in that case challenged the conviction (MacDonald v. Moose) because the statute should not have been invoked.
The then-Attorney General Ken Cuccinelli attempted to argue that he should be allowed to use this ban in order to prevent minors from being sexually assaulted, and he ran a high profiled campaign for governorship largely on the platform that he was trying to reinstate the Crimes Against Nature statute to protect children from sexual predators.
In reality, critics charged, Cuccinelli was attempting to regulate private consensual acts and potentially was building a framework to attack the gay community, whose rights he had already rolled back significantly during his tenure as an attorney general. Cuccinelli found little favor among the courts, or among Virginia voters, so the ban remains unusable. So, into the breach has gone Senator Garrett and his SB 14.
Though Senator Garrett believes this is a perfectly reasonable bill, its impact on the state could be anything but reasonable, and the fact that it de facto penalizes same-sex couples and non-heterosexual individuals in a way that is more severe than heterosexuals is a testament to how poorly thought out this legislation is.
Fortunately, and because of the way this legislation so blatantly affronts civil rights, there is little reason to think it could pass a constitutional challenge. Garrett seems to have got that message, at least, and is reported to be drafting an amendment to the legislation that would deal with the “unintended consequences” of the bill.
Critics of the bill charge that nothing short of scrapping the legislation will be enough, however.
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