Court of Appeals Strikes Down Virginia Sodomy Law

Richmond, VA – By a 2-1 vote, a panel of the U.S. Court of Appeals for the Fourth Circuit today held that Virginia’s “Crimes Against Nature” statute, which criminalizes all acts of oral and anal sex (including private acts between consenting married and unmarried adults), is unconstitutional.

The ACLU of Virginia joined Lambda Legal Defense and Education Fund and University of California, Irvine Law School Dean Erwin Chemerinsky in a friend-of-the court brief urging the Court of Appeals to invalidate the statue.

The Court of Appeals wrote that the U.S. Supreme Court’s landmark 2003 ruling, Lawrence v. Texas, invalidated all state statutes that criminalize sexual activity between consenting adults, and ruled that such statutes should not be the basis of a criminal prosecution.

“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for ten years after the Supreme Court held that such laws are unconstitutional,” said ACLU of Virginia Legal Director Rebecca Glenberg.  “This ruling should bring an end to such prosecutions.”

In its ruling, the Court of Appeals granted the habeas corpus petition of William MacDonald, who had been convicted under the Virginia sodomy law for soliciting oral sex from a seventeen-year-old girl.  Virginia state courts had held that MacDonald did not have standing to challenge the validity of the statute because his own conduct was not constitutionally protected.  The Court of Appeals disagreed, holding that MacDonald could not be prosecuted under a facially unconstitutional statute.

“Of course, Virginia can and should punish adults who have sexual relations with minors, but it may not use an unconstitutional statute to do so,” said Glenberg.  “Instead, the legislature should enact narrowly drawn statutes that do not apply to private conduct between consenting adults and define equitably and clearly what sexual conduct with minors is unlawful.”

The Court of Appeals ruling can be found at https://acluva.org/wp-content/uploads/2013/03/20130312MacDonald4thCircuitOpinion.pdf

ACLU of Virginia Contact:
Claire Guthrie Gastañaga, Executive Director, 804-644-8022