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How Ken Cuccinnelli's Anti-Sodomy Obsession Could Set Real Sexual Predators Free

Virginia's would-be Rep. Gov. is not the 'crusader for children' he claims to be.
 
 
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Shortly after the Supreme Court rejected Virginia Attorney General Ken Cuccinelli’s (R) effort to revive parts of his state’s anti-sodomy law, Cuccinelli’s office emailed a statement to reporters claiming that prosecutors have been “using this law to protect minors from predatory adults.” The lower court’s decision striking the law, the Attorney General’s office warned, “puts tools prosecutors need to protect children in jeopardy,” adding that nearly 90 “sexual predators” could be deregistered as sex offenders.

The full story, however, is far more nuanced, and it significantly undermines Cuccinelli’s effort to paint himself as a crusader for children. The truth is that Cuccinelli himself, along with the Republican candidate now running to replace him as attorney general, both played a significant role in undermining Virginia’s ability to prosecute sexual predators. As state lawmakers, both men put their personal opposition to homosexuality and gay sex above Virginia’s need to combat genuine sex crimes. And both men were part of a much greater effort to keep an unconstitutional law on the books.

In 2005, William Scott MacDonald was  convicted, under Virginia’s Crimes Against Nature law, of soliciting a 17-year-old female for oral sex — a felony under the law and  not his first conviction under the same statute. Because that law — first enacted in 1950 to prohibit oral and anal sex, as well as bestiality — has not been updated since a  2003 Supreme Court ruling struck down sodomy laws, it was  overturned this year. The convictions of other  sexual offenders and child predators may also be now at risk.

Though both have made fighting sexual predators a key campaign issue, the Republicans nominees in next month’s Virginia Gubernatorial and Attorney General elections — Cuccinelli and Mark Obenshain (R), respectively — are among those who bear responsibility for allowing this to happen, having toed the line of the state’s most prominent Christian Right organization.

While rarely enforced in the modern era to prosecute the private behavior of consensual adults, Virginia Crimes Against Nature law was long used as an excuse to discriminate against gay and lesbian Virginians. In the late  1990s andearly 2000s, state legislators repeatedly attempted to amend the Crimes Against Nature law to exclude oral and anal between consenting adults, or to at least reduce crimes from felony to misdemeanor.

The leading opponent of such changes was a Richmond-based  anti-LGBT groupcalled the Family Foundation of Virginia. The group’s  legislative scorecardsrewarded legislators who opposed such changes and punished their backers. Their  website in 2001 identified keeping the sodomy ban unchanged as a “priority.”

The U.S. Supreme Court’s 6 to 3 Lawrence v. Texas  ruling, authored by Justice Anthony Kennedy in 2003, held that adult couples are “entitled to respect for their private lives,” and that states “cannot demean their existence or control their destiny by making their private sexual conduct a crime,” as “their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” As a result, sodomy laws like Virginia’s were deemed unconstitutional. The Family Foundation’s Victoria Cobb  blasted the Supreme Court for giving “homosexual activists the opening they have been seeking to impose their agenda on the people of Virginia.” Republican Delegate Bob Marshall called the ruling “cultural suicide” by justices wearing “the black robes of death.”

When the Virginia Crime Commission (a group made up of members of the state legislature, gubernatorial appointees, and the state’s attorney general) met later that year to decide how to address the Lawrence ruling, the panel’s Republican majority balked at removing the unconstitutional consensual sodomy ban from the code. Two Senators who served on the commission at the time recalled to ThinkProgress that the panel’s chairman, Delegate David Albo (R), grew frustrated with conservative opposition and sarcastically proposed perhaps there should be a special section in Virginia’s legal code for things that are unconstitutional but that people want to keep on the books anyway. Albo did not respond to multiple requests for comment, but  told the Washington Post at the time that the commission did not want to change the statute while cases were still pending in the courts.. The Republican-dominated panel  recommended that the unconstitutional Crimes Against Nature law (§ 18.2-361) be left on the books but that a new section (§ 18.2-361.1) be added to specifically criminalize “sodomy that occurs in a public place.” The 13-person crime commission making that recommendation included now-Gov. Bob McDonnell (R) and now-U.S. Congressman Morgan Griffith (R). The Family Foundations’ Cobb  lauded the move to “repair the damage done by theLawrence vs. Texas decision without repealing the Commonwealth’s longstanding crimes against nature statue” as “a victory for traditional families.” She added, “The citizens of Virginia have long supported keeping this statute, and the commission has responded to those people.”

 
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