Benefit of the Doubt

A couple of days ago, I linked to a Mother Jones piece about Virginia’s Attorney General and GOP gubernatorial candidate Ken Cuccinelli on a 4th Circuit case involving a sodomy law that the 4th Circuit Court of Appeals deemed unconstitutional.

One of my former students responded thoughtfully about the particulars of the case, which are at least somewhat elided in the Mother Jones piece and in my own post on the matter.

One might read the piece and get the sense that Cuccinelli is acting in a completely unreasonable manner, defending a law that criminalizes sodomy between consenting adults. In fact, though, the case before the Court involves a 47 year old man and a 17 year old girl.

It’s a bit more confusing than all of that, of course, but the fact remains that Cuccinelli isn’t acting unreasonably at all in seeking to preserve the convinction or registration as a sex offender of someone who has three times been convicted of engaging in or attempting to engage in sex acts with minors.

The trouble is that Cuccinelli is seeking to do it by defending a law that is unconstitutional. At issue is whether or not Virginia’s anti-sodomy law could be preserved in cases involving an adult and a minor (since, based on Lawrence v. Texas we know it cannot be preserved in cases involving consenting adults). The Court ruled that it could not because Virginia’s law makes no distinction between minors and adults; it simply issues a blanket ban on sodomy.

Cuccinelli is appealing that decision, attempting to sever and preserve improper sexual behavior with a minor from the unconstitutional blanket ban on that behavior as written in the law. I think it’s wrong-headed, but it’s not an unreasonable thing for an Attorney General to do. Nor is obviously homophobic or hypocritical or whatever else I might have intimated in my post.

I ought to have given Ken Cuccinelli the benefit of the doubt but my opinion of him, especially on this particular question, was already muddied by other things that I know about him. This long quote from a recent ThinkProgress piece by Josh Israel outlines a bit of the history:

In 2003, the U.S. Supreme Court’s Lawrence v. Texas ruling held that states may not ban private non-commercial sex between consenting adults. Virginia’s Crimes Against Nature statute, which made oral sex (even between consenting married couples) a felony, was clearly the sort of legislation the Court was referencing.

A year later, a bipartisan group in the Virginia Senate backed a bill that would have fixed the state’s Crimes Against Nature law to comply with Lawrence — eliminating provisions dealing with consenting adults in private and leaving in place provisions relating to prostitution, public sex, and those other than consenting adults. Cuccinelli opposed the bill in committee and helped kill it on the Senate floor. In 2009, he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: “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.” As a result, the law’s text remains unchanged a decade after the Supreme Court’s ruling.

While the state could have brought misdemeanor charges under other statutory rape laws, the prosecution instead utilized the felony provisions of the Crimes Against Nature law. Because its provisions were never updated to comply with the constitutional privacy protections, the appeals court ruling determined that the law itself is unconstitutional. Even if Cuccinelli wins, the cost in time and money to Virginia will be huge — and could have been entirely avoided had he and the Republican majority in the Virginia General Assembly not been so determined to ignore the Supreme Court.

With this knowledge of Cuccinelli’s opinions, I did less of the hard work of explaining as much of the case as I could as well as I could and instead took the easier road of simply jumping right to a conclusion that might not be supported by the particulars of this case (even if I think they are supported by the reason for the way the case has turned out).

In doing so, I surely took readers down a shorter path with fewer details and that’s not what I’m trying to do here on the blog.

# Virginia # Cuccinelli # politics # lgbtq # news # Supreme Court # criminal justice

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