Court won’t hear Virginia appeal over sodomy law

RICHMOND, Va. — The U.S. Supreme Court refused Monday to hear an appeal of a lower court ruling that struck down Virginia’s anti-sodomy law.

Attorney General Ken Cuccinelli’s office appealed a March ruling by the a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals, which declared Virginia’s law unconstitutional.

The appeals court’s ruling came in the case of 47-year-old William Scott MacDonald, who was convicted of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. His conviction came two years after the landmark Lawrence v. Texas decision effectively struck down anti-sodomy laws in that state and several others. The appeals court cited that 2003 ruling in its 2-1 decision.

The attorney general argued that the Texas ruling did not apply to sex acts between adults and minors. The appeals court rejected that interpretation, saying the justices implied in Lawrence that a state could criminalize sodomy between an adult and a minor but that such decisions rest with legislatures, not the judiciary. Virginia does have such a law, but it applies to minors under the age of 15.

“As we’ve said from the beginning, this case was never about sexual orientation or private acts between consenting adults,” Cuccinelli spokesman Brian Gottstein said in an email Monday. “Virginia’s law couldn’t be used against consenting adults acting in private. It only applied to offenses committed against minors, against non-consenting or incapacitated adults, or in public.”

Cuccinelli, the Republican candidate for governor, has said Virginia prosecutors have used to law to prosecute child molesters. He said nearly 90 people convicted of sex crimes involving minors may be eligible to have their names removed from Virginia’s sex offender registry because of the appeals court’s ruling.

“The Supreme Court made it perfectly clear in 2003 that laws that broadly prohibit certain kinds of sexual acts are unconstitutional,” said Rebecca Glenberg, legal director of the ACLU of Virginia, which filed a friend-of-the-court brief in the MacDonald case. “Clearly sexual acts with children are not constitutionally protected and should be punished, but the General Assembly should enact laws specifically targeted to that behavior and not rely on an out-of-date, overly broad, unconstitutional law to prosecute those very serious crimes.”

MacDonald’s attorney, Benjamin E. Rosenberg, did not immediately return a telephone message.