RICHMOND, Va. — A long-standing “Crimes against Nature” law, which criminalized anal and oral sex in Virgina, has been found unconstitutional by the U.S. Court of Appeals for the Fourth Circuit.
In a 2-1 ruling, a panel of the 4th U.S. Circuit Court of Appeals on Tuesday declared that the Virginia law violates the U.S. Constitution’s due process clause.
“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for 10 years after the Supreme Court held that such laws are unconstitutional,” said Rebecca Glenberg of the ACLU of Virginia, which filed a friend-of-the-court brief urging the court to invalidate the law.
Glenburg said Virginia prosecutors had been using the sodomy law to “prosecute people who were accused of engaging in oral or anal sex with minors, or soliciting in public.” And when challenged, the Virginia courts said there was no standing to challenge the law because the specifics of the 2003 Lawrence v. Texas law dealt with consenting adults.
Because the 4th circuit hadn’t taken a case like this before, Glenberg said the certainty of the court striking down the law was in question. But after hearing arguments in the case, she was reassured that it would be struck down.
The case that made its way to the 4th district, MacDonald v. Virginia, details William Scott MacDonald’s 2005 conviction for criminal solicitation. MacDonald had vaginal intercourse and oral sex with two fellow volunteer firefighters from 2002-2004. The sex was consensual, however the two girls MacDonald engaged with were 16 and 17.
The age of consent in Virginia is 15, but the public nature of where the sex acts took place complicated the issue. McDonald was convicted on the theory that the Lawrence case did not apply to sodomy involving minors. He was sentenced to 20 years in jail, with 17 years suspended.
The appeals court noted that Virginia does have a law prohibiting an adult from soliciting sodomy from anyone under age 15, but MacDonald could not be charged with violating that statute because his accuser was 17.