On this I’m just going to turn the mic over to TPM Reader LF …
Stopping short of actually reading the 4th Circuit decision, I have been trying to understand the news that you and others have been reporting on Cucinnelli’s attempt to have the Supreme Court review the VA sodomy law. Obviously, he makes certain claims about what it means, but the question I was left with is why wouldn’t the prosecutors just charge the Defendant for statutory or actual rape.
Think Progress has a good rundown on this with a couple of key points.
1) Statutory rape is a misdemeanor under Virginia Law, while the “Crimes Against Nature” statute is a felony. So the prosecutors wanted to press for more.
2) Far more interesting, Think Progress notes that Cuccinelli was one of the key Virginia legislators who opposed changing the statute to resolve its post-Lawrence Constitutional questions. As my law school professor used to say, Cuccinelli is hoisted on his own petard. Indeed, Cuccinelli’s reasoning for this was based on his belief that “homosexual acts . . . don’t comport with natural law.”
The import of this second point goes beyond the obvious political points here–strengthening McAuliffe’s backing amongst the LBGTQA voters, painting Cuccinelli as a far right zealot, and blaming him for a completely wasteful decision on state resources twice–first as a State Senator for opposing the law, and as AG for challenging it–as well as maybe even as putting young people more at risk in service to his zealotry (maybe–I am not sure that soliciting oral sex from a teenager is any worse than any other type of solicitation). But as a legal matter, the legislative history that Cuccinelli helped make in the state legislature demonstrates the exact type of targeted discrimination that Evans v. Romer and Lawrence v. Texas (and the Ninth Circuit in Perry, the Prop. 8 case) says in unconstitutional. If no bill had ever moved through the Legislature, Cuccinelli might now be able to argue that the purpose of the Virginia law is to apply to non-consensual situations–therefore being essentially a heightened rape charge. The argument would be tough for a lot of reasons, but it is conceivable that you could argue that the law school be construed in that fashion, knowing that prohibiting any such consensual acts was unconstitutional. But Cuccinelli and his cohorts who blocked the amendment in the Legislature now seem to make it clear that they understood the intent of the law was to target gay people specifically. In a just world, people would pay attention to this detail and reject him outright–not because he is a right-wing zealot (though he is), but because whatever his ideology, he has so given into it that his zealotry makes it impossible to just carry out the basic functions of government–such as enforcing the law and prosecuting criminals.
Whatever the case, the Think Progress article is an important piece of context to understand what is going on here. (And it’s actually worse than it seems.)
