RICHMOND, Va.—Poor Ken Cuccinelli. He's the former Virginia state senator who became its attorney general, who'd like to be governor after the current Republican Bob McDonnell leaves that office later this year and will likely be considering a presidential run in '16. But Cuccinelli's campaign suffered a little setback when it turned out that nobody on the Fourth Circuit U.S. Court of Appeals had an inclination to rehear Cuccinelli's appeal of a lower court's decision which brought the state into compliance with the U.S. Supreme Court's 10-year-old decision in Lawrence v. Texas, which struck down consensual sodomy laws across the country.
The case at bar was MacDonald v. Moose, and its facts are pretty simple: Forty-seven-year-old William Scott MacDonald propositioned an unnamed 17-year-old girl, "A.J.," to blow him in his truck on a public street. She refused, but after he attempted to accuse her of sexually assaulting him, she went to the police and told them of MacDonald's proposition.
Now, for just about anything to do with sex, a 17-year-old in Virginia is considered a minor, and besides being charged with contributing to the delinquency of that minor, MacDonald was also hit with a felony: Criminal solicitation of a minor to commit sodomy. He was convicted of both, served part of his ten-year sentence until he was granted parole, and upon being released, had to register as a sex offender because of the sexual felony conviction.
Of course, being labeled a sex offender tends to impact everything from who'll hire you to where you can live, so MacDonald sought to get that charge expunged from his record, and he had a pretty good argument: In order for the criminal solicitation charge to remain on his record, sodomy would still have to be a crime in Virginia—and sure enough, there was still a statue on the books called "Crimes Against Nature"... but there was also Lawrence v. Texas, which made that "crime," in the immortal word of Richard Nixon, "inoperative."
Based on Cuccinelli's arguments, the district court threw out MacDonald's petition for expunction, but on appeal, the Fourth Circuit reversed in mid-March. That didn't sit well with Cuccinelli, so he asked for an en banc review, which was officially rejected yesterday, and MacDonald's record no longer lists him as a sex offender.
What's interesting, though, is Cuccinelli's logic in opposing the expunction. He claimed that Lawrence v. Texas didn't apply to minors, and that it was his job to protect kids from predators like MacDonald, and leaving the anti-sodomy statute on the books would help him do that.
"As we stated last week, this case has nothing to do with sexual orientation or private sexual acts between consenting adults," Cuccinelli's deputy communications director Caroline Gibson told the Washington Blade on Tuesday. "It’s about using current law to protect a 17-year-old girl from a 47-year-old sexual predator. The attorney general is committed to protecting Virginia’s children from predators who attempt to exploit them and rob them of their childhood."
Interestingly, back in 2004, when Cuccinelli was a state senator, the Virginia legislature actually tried to pass a law prohibiting sodomy between an adult and a minor, but guess who voted against it? Cuccinelli's logic at that time was simply that he wanted to keep the broad anti-sodomy law on the books despite the Lawrence decision because, as a conservative Republican, he just wanted to keep gay sex a crime. (BTW, he'd like to outlaw all abortions, too!)
But most civil libertarians consider the MacDonald decision to be a win for the good guys.
"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, legal director for the American Civil Liberties Union of Virginia. "This ruling should bring an end to such prosecutions."
Of course, Cuccinelli still has one avenue open to him: Petition the U.S. Supreme Court to uphold Virginia's statute... and who knows? If the high court's conservatives hold sway, maybe they can reverse Lawrence v. Texas in the process!