WASHINGTON — Virginia Attorney General Ken Cuccinelli, the state's Republican nominee for governor, has decided the best defense is a good offense in his attempt to defend the constitutionality of the state's sodomy law up to the Supreme Court.
Cuccinelli has asked the Supreme Court to take his appeal of a case against William Scott MacDonald that he lost at the appeals court in order to allow the state to use its sodomy law to prosecute MacDonald for soliciting a minor — despite the Supreme Court's 2003 ruling in Lawrence v. Texas that sodomy laws are unconstitutional.
Cuccinelli's defense has faced criticism due to his continued support — expressed as recently as 2009 — for the criminalization of homosexual sodomy and his opposition to updating the law to eliminate the unconstitutional law while continuing to criminalize the behavior at issue in the MacDonald case.
Rather than addressing those issues, Cuccinelli on Wednesday launched a website attacking his Democratic gubernatorial opponent, Terry McAuliffe, for "Playing Politics Instead of Protecting Our Children."
The site, paid for by Cuccinelli's campaign committee and not the attorney general's office, declares up top that Cuccinelli has "Ask[ed] U.S. Supreme Court to Uphold Anti-Child Predators Law," and states that "90 ... sexual predators in neighborhoods across the commonwealth ... could come off Virginia's sex offender registry if a Virginia law used to protect children is not upheld."
Although the Supreme Court is generally viewed as having struck down sodomy laws in the Lawrence case, the court's action in the case did not actually take the laws off the books, but rather renders them unconstitutional to be enforced. Few states have, in fact, repealed the laws since then. Under Virginia's "Crimes Against Nature" statute, never formally repealed, "If any person … carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]"
Cuccinelli's office, in defending the use of the law, argues that the Lawrence decision doesn't render sodomy laws unconstitutional in all situations and that it is constitutional to apply the law in this situation because the prosecution involves a minor.
On the site, the Cuccinelli campaign explains further, "This case is about using current law to protect a minor girl from a 47-year-old repeat sexual predator. The law is only applied to sodomy committed against minors, against non-consenting adults, or in public. In fact, contrary to misinformation peddled by Terry McAuliffe and his liberal allies against the defenders of this law, the law is not — and cannot be — used against consenting adults acting in private."
Asked about the new site and its attack on McAuliffe, the Democrat's spokesman was incredulous.
"Everyone supports strong laws to protect children and, like most Virginians, Terry believes our laws should be updated to both conform with Court rulings and allow prosecution of predators," spokesman Josh Schwerin said.
Schwerin then went on the attack as to Cuccinelli's record, noting, "As he admitted as recently as 2009, Ken Cuccinelli is one of the only elected officials in America who believes that being gay should result in criminal prosecution and jail time. Cuccinelli's refusal to support a mainstream legislative update to Virginia laws reflects his extreme agenda and uncompromising approach."
[Update at 7:15 p.m.: The Cuccinelli campaign provided a news release to BuzzFeed this evening in response to a request for comment about the reason for the website and additional questions, reading in part:
True to form, Terry McAuliffe had no problem attacking Ken Cuccinelli earlier this year for defending a Virginia law used to prosecute a 47-year-old man who solicited a minor female.
But recently, when asked by Louisa County Commonwealth's Attorney Rusty McGuire whether he in fact agreed with Cuccinelli's position on the law, McAuliffe responded, "I don't know anything about that. . . . I'll get back to you tomorrow."
So far, McGuire hasn't gotten a call back.
The campaign did not respond to questions about whether Cuccinelli still believes that Lawrence v. Texas was wrongly decided, whether he believes homosexual behavior should be subject to criminal penalties and why he opposed a legislative update to Virginia's laws that would have modernized them post-Lawrence to allow for continued prosecution of the type at issue in the MacDonald case.]
What Cuccinelli Told The Supreme Court:
What Cuccinelli Is Telling Virginia's Voters:
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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