Wednesday, April 3, 2013

In which I defend a Republican AG against allegations of rightwingnuttery

Sometimes, the headlines and articles written about criminal cases give off a very wrong impression. On occasion, it's probably got something to do with the complexity of the legal issues. But sometimes, it's just lazy journalism. Or exploitative journalism. I'm afraid this falls into the latter categories.

I saw the headline and was all set to be thoroughly outraged.

Top Va. Republican urges court to keep anti-sodomy law on the books
That's so awful, I thought. Disgusting, despicable. It's well-settled law going back to 2003 in Lawrence v. Texas that laws prohibiting certain sex acts between consenting adults are unconstitutional. I know in my state, we still have an anti-gay sodomy law on the books that our legislature and special Repealer Office that was set up to find obsolete laws that should be taken off the books have refused to repeal. I find it deeply offensive that my state legislature chooses to maintain a law making all homosexual sexual conduct illegal even though it's totally unenforceable.

Then I read into the article and found this line:

 The three-judge panel ruled 2-1 on March 12 that a section of Virginia's 'Crimes Against Nature' statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas."
That sentence leads one to believe that this Attorney General is just trying to keep an anti-sodomy law on the books out of some animus toward gay people or out of a belief that the state can legislate his view of sexual morality. So, yep, confirming my sense that I want to be outraged.

But if you know me, you know I go deeper than articles and find the more direct sources. Now, you'll note in the article, the AG bases his argument on the idea that Lawrence only applies to consenting adults, which kinda made me wonder what that had to do with this general anti-sodomy statute. And here's where the article is a little misleading. Turns out the Virginia anti-sodomy statute doesn't reference consenting adults. It doesn't reference age at all.

Virginia's statutes on this are a tad complicated. They have their anti-sodomy law, 18.2-361, in one chapter of the criminal code. That statute criminalizes any and all acts of sodomy. Period. No reference to age, consent, etc. Then in a different chapter, they have this separate statute, 18.2-370, that criminalizes soliciting a minor under the age of 15 to engage in sodomy. But that doesn't apply here because the girl was over 15. So this defendant was convicted of contributing to the delinquency of a minor, 18.2-371, and criminal solicitation, 18.2-29, both under a theory that he tried to get her to break the anti-sodomy law, 361.

So what the 4th Circuit Court of Appeals had to address wasn't quite what the article suggests. The defendant had been convicted of soliciting a 17 year-old to perform oral sex on him. So under 371 and 29, he met the age requirements of committing a crime in Virginia because he was over 18 and she wasn't. But because of that quirk in the child sex crimes statute that only references people 15 or younger, he could only be convicted for soliciting her to violate 361.

The problem the 4th Circuit ran up against was that the plain language of 361 is facially unconstitutional. That broad anti-sodomy statute makes no reference to age or force or anything. Just flat says any and all acts of sodomy are illegal. (Sodomy under the law is anything other than penile-vagina intercourse, btw.) If the anti-sodomy statute, 361, just separated out sodomy between adults and sodomy involving minors, the 4th Circuit wouldn't have had a problem affirming the conviction. But the statute doesn't do that.

The 4th Circuit said the anti-sodomy statute is unconstitutional and I can't disagree at all. I'm not sure the Virginia AG can disagree, either. Trouble is, if that statute is unconstitutional, then the way the Virginia statutes are crafted, the defendant can't be convicted for soliciting sodomy from someone over 15 but under 18. It's just a quirk of the way Virginia has set up its statutes. Even the 4th Circuit isn't saying Virginia can't set its age of consent at 18 and criminalize any sex acts between an adult and a minor. All the 4th Circuit said is Virginia's laws are clumsily written and that clumsiness makes it impossible to convict this particular defendant for this particular act.

So this is what the Virginia AG is challenging. He isn't tilting at windmills to keep an unenforceable statute on the books just so people in Virginia can know they live in a state that has a moral objection to anything other than straight intercourse. He just wants to save a conviction of an adult accused of inappropriate sexual behavior with a minor.

Having now meandered through Virginia's sex crimes statutes, I can verify that they're kind of a mess. Seems to me that the AG's time would be better spent working to redraft those statutes to make them readable and coherent. This particular defendant has largely served his sentence, though the state will lose the ability to make him register as a sex offender. And there will undoubtedly be other defendants who will be able to benefit from this ruling, so I'm sure he's thinking about that. He probably just needs to accept that the statutes as currently written leave this giant, unsalvageable hole. If Virginia wants to prosecute adults who engage in sodomy with 16 and 17 year-olds, they need to write a proper statute. Pursuing that would be a better use of the AG's time.

But while I think he should concede this particular battle, I will defend him against the unfair suggestion of this article.

UPDATE: Look, it's not that this AG isn't a wingnut zealot. By many other accounts, he is. If this article had included a thorough history of the AG and been accurate about the facts of this particular case, then pondered whether the AG's zealotry could affect a gubernatorial election, I wouldn't have complained. But that isn't what this article did.

Instead, it slightly misrepresented the statute in question (by suggesting it purely relates to sodomy between adults).

It woefully misrepresented a part of the 4th Circuit opinion in a block quote from another article. (The block quote suggests that the opinion notes that the defendant in that case could have been prosecuted under other statutes, which makes defending application of this particular statute in this particular case seem wingnutty. But that isn't what the opinion said at all. The opinion noted that this gap existed in the Virginia code whereby even though the legal age of consent is 18, there is no statute under which an adult who engages in sodomy with an older teen can be prosecuted. The opinion then said the Virginia legislature could write such a statute, but the courts could not.)

The fact that this AG has a history of doing wingnutty things makes it all the more important for a reporter to note when an action that may appear wingnutty on the surface could really motivated by a different kind of zeal: prosecutorial zeal. In this one specific instance, this AG isn't being an anti-gay zealot, he's being a prosecutorial zealot who doesn't want to see who knows how many convictions of adults engaging in sodomy with older teens be vacated. (I think he's wasting time defending this statute. If the legislature doesn't want to explicitly outlaw sodomy between adults and older teens, that's their choice. But I get that he thinks they intended to, they just did it based on the broad, unconstitutional anti-sodomy statute.)

Now, maybe he really is, or also is, motivated by the morality thing (it wouldn't be strictly anti-gay as the statute in question criminalizes an awful lot of stuff straight people do). But when there is another stated motivation, it is incumbent upon a journalist not to ignore that motivation and not to write an article that hints at it being pretextual without reporting on the facts that would suggest that motivation is the real motivation.

This post isn't really about defending this AG, it's about calling out shoddy journalism. This article is shoddy journalism.

SECOND UPDATE: Last one, I swear. But the more I'm looking at Virginia's oddly-crafted statutes, the more I'm thinking this decision doesn't just make prosecuting adults for engaging in sodomy with older teens who are below the age of consent impossible. I think it also threatens the state's ability to prosecute adults who engage in sodomy with teens as young as 13. That statute also specifically invokes 361, the general anti-sodomy statute. So if the anti-sodomy statute is facially invalid, it can't be the predicate offense for a violation of 370, either. (At least, defense attorneys, like this one, will surely make that argument all over the state.) As clearly right as the 4th Circuit is to find 361 facially unconstitutional, I'm not sure there's a top prosecutor in any state who wouldn't try to challenge that decision because of the potential fall-out for hundreds or thousands of convictions and on-going prosecutions. What a mess, Virginia. Fix your sex crime statutes!


Carol said...

I'm not a lawyer, so I apologize if this is a dumb question: What does "age of consent" mean, if it doesn't mean that it's illegal for adults to engage in sex acts with people below that age?

(Just found your blog, and really enjoying reading it, by the way.)

S said...

That's pretty much exactly what age of consent means, but a legislature still has to write specific statutes outlawing specific conduct. In Kansas, we know the age of consent is 16 not because there is one statute that says so explicitly, but because the totality of the sex crimes statutes makes that clear. There are a variety of statutes because the state recognizes that a 16 year-old having sex with his/her 15 year-old significant other is not the same as a 40 year-old having sex with a 15 year-old. Fondling isn't as serious as intercourse, etc.

Virginia's statutes are very clumsy. It is clear that the state sees 18 as the age of consent, but how they get to criminalizing those acts is a big, big mess. But just a statute saying the age of consent is 18 wouldn't be specific enough to establish criminal liability because we need more specific elements explicitly written in law.

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