In 2003, the Supreme Court overturned sodomy laws in Texas in a landmark decision for gay rights called Lawrence v. Texas, which effectively invalidated similar laws in 13 other states, including Virginia. Now, Virginia Attorney General Ken Cuccinelli is spending the final weeks of his Republican gubernatorial candidacy looking to skirt the limits of this decision by bringing the old law back.
Virginia's anti-sodomy law continued to exist after the ruling, but it was overturned this year in a case in which 47-year-old William Scott MacDonald, a homeless war veteran living in a truck, was charged for soliciting a 17-year-old girl for sex. The girl refused and called the police – no sexual contact actually occurred. He was charged with a felony according to the state's old Crimes Against Nature law, and he took the law to the federal appeals court, which decided in his favor because Lawrence v. Texas invalidates any and all laws banning sexual contact between consenting adults. (The age of consent in Virginia is 15).
Cuccinelli has used the young age of the accuser in the case as an opportunity to pander to those interested in protecting children against sexual abuse. He has created a website claiming "90 pedophiles will go free" if the Crimes Against Nature law remains struck down. His mission seems honorable at first, but his real agenda is easy to see. In 2008, Cucinelli declared that, "When you look at the homosexual agenda, I cannot support something that I believe brings nothing but self-destruction, not only physically but of their soul.”
Even if it weren't so painfully clear that Cuccinelli's endeavor is homophobic, there are other reasons why his argument that he is protecting children against sexual predators falls flat. Vaginal rape, the form of rape that results in perhaps the most harmful social consequences (i.e. pregnancy), is outside the scope of his interest. This is perhaps unsurprising for someone who shares a political party with Republican Indiana Senate candidate Richard Mourdock, who suggested that pregnancy from rape is a "gift from God."
In addition to the repugnance of his ideological obsession, Slate underscores the disturbing implications of Cuccinelli's words: "It’s a call for judges to read statutes to mean what they don’t say; a call for outright judicial activism, for freewheeling judicial interpretation — qualities legal thinkers on the right usually deplore."
Indeed, the political right is often obsessed with adhering to the principles set forth in the Constitution, and Cuccinelli's desire to circumvent a federal ruling violates the principle of due process, which originated in the Magna Carta and protects citizens' rights to be informed of any laws they may be violating – and to challenge those laws.
Aside from the fact that they result in the harassment of vulnerable populations (rather than their protection, as Cuccinelli might argue), anti-sodomy laws are impossible to enforce. Rape of all kinds in America is considered a "crime of youth," disproportionately affecting people under the age of consent. Why not instead focus on raising the age of consent – many people who are 15 are still children, and thus vulnerable to sexual abuse – and listening to and respect young people when they complain of such violence?