Cuccinelli’s Sodomy Problem

As has been widely reported, Virginia AG Ken Cuccinelli, the Republican candidate for governor, is trying to revive that state’s sodomy law, struck down in 2003 along with all similar laws, and is asking the courts to help him. And he’s pretending that it has something to do with pedophilia, which it doesn’t. Dahlia Lithwick explains the history of the case and how unprincipled Cuccinelli is being on it.

It has long been the mantra of Republican politicians that judges—especially elitist federal judges—should never, ever legislate from the bench. Now consider Attorney General Cuccinelli’s approach to Virginia’s sodomy law. The anti-sodomy statute, 18.2-361, applies to “any person” that “carnally knows any male or female person by the anus or by or with the mouth.” Yes. It bans all oral and anal sex. And for those who partake, the legal consequence is a felony conviction, possible imprisonment, and lifelong status as a sex offender.

The sex offender is this case was William MacDonald, a 47-year-old man who solicited oral sex from a 17-year-old woman. (No sex was had). Because 15 is the legal age of consent in Virginia, authorities couldn’t charge MacDonald for statutory rape. Faced with other statutes to choose from, they opted to charge him with soliciting a minor by inducing her to commit sodomy, for which he served a year in prison and must now register as a sex offender.

In March, the federal court of appeals struck down the Virginia sodomy law and threw out MacDonald’s conviction for reasons clear to anyone who’s ever watched Ally McBeal. Lawrence v. Texas, the 2003 Supreme Court decision about Texas’ anti-sodomy statute, held that states can’t regulate private consensual sexual activity amongst adults. The court of appeals’ position, that state anti-sodomy laws simply do not survive post-Lawrence, is the same position taken by attorneys general in other states, including the prior Virginia attorney general. That should end it, right?

But even with the tide of legal authority against him, Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds. (Justice Kennedy left the thread of that argument hanging in his majority opinion in Lawrence.) In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance.

Of course, Cuccinelli’s problem at the Supreme Court is that Virginia’s sodomy statute doesn’t mention age, so reading an imaginary age requirement into it is not “interpreting” the statute so much as rewriting it—a freewheeling position normally anathema to Tea Party conservatives like Cuccinelli. Moreover, the Virginia legislature actually tried to rewrite the law to salvage it for narrower purposes after the Lawrence decision, but Cuccinelli helped kill that bill. You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.

Sure you can. You just have to lie a lot, which Cuccinelli has no problem doing.

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  • matty1

    So if MacDonald had vaginal sex with the 17 year old Cuccinelli would be fine with that?

  • In prison, the most respected group is in there for Felony Cunnilingus. True story.

  • tubi

    matty1 @1

    Good question. It seems like they were trying to get him for interacting sexually with a 17 year old, but their long-standing age of consent law barred that. So they went looking for something else.

    One also wonders how he would have reacted had the genders been reversed, i.e. a 47 year old woman asking a 17 year male for oral sex.

  • alanb

    Because 15 is the legal age of consent in Virginia, authorities couldn’t charge MacDonald for statutory rape.

    This had me confused when I first read it. The age of consent in Virginia is actually 18, but evidently it is only a misdemeanor if the victim is over 15 and that wasn’t good enough for Cuccinelli.

  • D. C. Sessions

    The bottom line is that Cooch blew it.

  • unbound

    Although it may have been changed as a result of the incident (I can’t go back to changes in the applicable legal code prior to 2003), the age of consent in Virginia is not currently 15 or older. The age of consent is 18. There is an exception that teenagers 15 to 17 are allowed to have sex with each other, but anyone 18 or older that has even consensual sex with a 15 to 17 year old is guilty of rape (

    This just shows even more clearly that Cuccinelli is being entirely dishonest about the issue since 16 and 17 year olds are completely covered by current law already.

  • Felony Cunnilingus.

    Wasn’t that a James Bond girl in the 70s?

  • Larry

    Are blow jobs really the most pressing legal issue faced by the VA AG? There are no other legal questions of greater magnitude to occupy his time? If not, one needs to wonder if the state can survive without an AG at all give the positions lack of things to do that really matter. That should save a butt-load of money.

  • That;s still a pretty bad law. Two people a month apart in age could have legal sex, then it’s a misdemeanor for a month, then it’s legal again. You’d hope discretion would keep this from being prosecuted, but history shows that isn’t necessarily the case.

  • Synfandel

    theschwa, you just made my day.

  • David C Brayton

    Great headline.

  • colnago80

    Koo Koo Ken is a nutcase, marginally less kooky then his running mate for Lt. Govenor.

  • Cuccinelli* has never gotten a blow job?

    * Love how my spellcheck wants to correct Cuccinelli.

  • oranje

    @8 Larry:

    “Are blow jobs really the most pressing legal issue faced by the VA AG?”

    I read that very, very differently.

  • David Marjanović

    Are blow jobs really the most pressing legal issue faced by the VA AG?

    I’m almost happy he isn’t harrassing Michael Mann again.

  • dcsohl
  • theschwa “Felony Cunnilingus. Wasn’t that a James Bond girl in the 70s?”

    Also, sister of Feloni Cunnilingus, Italian senatori (1977-79), who paved the way for Cicciolina’s run. True story.

  • I have to wonder what it is about this particular case that has Cuccinelli so fired up that he’s rewriting laws and appealing all the way to the Supreme Court? Surely, this isn’t the only case in Virginia of an adult soliciting a blow job from a teenager.

  • Azkyroth Drinked the Grammar Too :)

    Are blow jobs really the most pressing legal issue faced by the VA AG?

    Err, no, they involve the mouth.

    That should save a butt-load of money.


  • Moggie

    In March, the federal court of appeals struck down the Virginia sodomy law and threw out MacDonald’s conviction for reasons clear to anyone who’s ever watched Ally McBeal.

    He hired an amusingly quirky attorney?

  • boadinum

    So, Ken, have you ever “gone downtown” on your wife? Yes or No. Yes? You’re going to prison. No? Your wife gets a divorce.

    Stay the fuck out of our bedrooms.

  • John Pieret

    Unfortunately, this could help him with the mouth-breather vote in Va. They don’t care whether laws are constitutional or narrowly written … 47 yo man and 17 yo girl … throw him in jail …

    Unless, of course, the man is a minister:

  • Trebuchet

    theschwa, you just made my day.

    Did you miss D.C. Sessions at number 5?

  • Karen Locke

    Will someone PLEASE explain why any of these busybodies think what consenting adults do in their own bedrooms is anyone’s business besides theirs? I’ve really, really struggled with this issue since I was an undergrad — and I’m now 53 — and I simply CANNOT get my mind around it. I have learned math, computer engineering, software engineering, geology, painting, jewelry-making, metalsmithing, and many, many other things, but I can’t get my mind around this. I really can’t.

  • Karen Locke, sure, they believe in Liberty. But Liberty has it’s limits. If you don’t criminalize non-missionary position ensexification, what next? Rock ‘n’ Roll? Irrational numbers? Episcopalianism? Come on!


    Where does it stop? WHERE?!


    *The limit being whatever the most prudish, nosiest, most judgmental and moralistic, legalist SOBs insist they don’t do in their own bedrooms.

  • dingojack

    MO – Shit, it might even lead to – [bum bum BUUUUM!]




    * the horror, the horror, the horror!

  • When I saw the header, it made me think:

    “What, Cuccinelli isn’t gettin’ him some sodomy and he wants it? OR, he’s gettin’ some and DOESN’T want it?”. I’m sorry my mind is in the gutter a lot these days, I blame the hot wings.