Paying For A Crime That No Longer Is

ASHEVILLE, N.C.—AVN readers are well familiar with Lawrence v. Texas, the 2003 U.S. Supreme Court decision that struck down Texas' sodomy laws, and by extension the sodomy laws of every state in the Union. But that doesn't mean that the miscarriages of justice caused by those religiously based laws have gone away as well.

Take the case of William S. MacDonald, in 2005 a Virginia resident, who was convicted of four violations of Virginia's sodomy law for having had oral and vaginal sex with two women aged 16 and 17, both of whom worked with MacDonald as volunteer firefighters. He was sentenced on the sodomy charges to 20 years in the slammer, with 17 of them suspended—and as a result of the convictions, MacDonald was ordered to register as a sex offender and, of course, remain on probation for the remainder of his sentence.

So ... one might wonder how MacDonald was convicted of sodomy two years after the Supreme Court struck down all the sodomy laws? After all, the age of consent in Virginia is 15, so both of MacDonald's "victims" were of age to have consensual sex, and even though MacDonald was also convicted of misdemeanor "contributing to the delinquency of a minor" for having had vaginal sex with one of the girls, that crime doesn't trigger the sex offender registration requirement. (It did, however, score him an additional year behind bars.)

But he was imprisoned on the sodomy charges because, as he says in his petition for a Supreme Court review of his case, "Virginia, however, has since chosen to disregard Lawrence’s apparent invalidation of all sodomy statutes and continues to sporadically enforce its sodomy statute. Even worse, the court below countenanced Virginia’s inconsistent and unconstitutional application of the sodomy statute by refusing to review it, despite the statutory command to do so when a defendant makes 'a substantial showing of the denial of a constitutional right.' Because the lower courts decided and failed to decide a significant federal question in a way that conflicts with this Court’s decisions, the Court should grant review." [Citations omitted here and below.]

Notably, Virginia has since "reformed" its sodomy laws. They now only apply to sex involving minors, although the age of consent remains at 15. And according to New York Times correspondent Adam Liptak, "Under the law as interpreted by the Virginia courts, moreover, it seems to be a felony in Virginia for two teenagers to engage in common sexual activities. Gay teenagers would appear to be particularly vulnerable to prosecution."

"This bifurcation leads to a seemingly absurd result," attorney Daniel Allender wrote in The Duke Law Journal regarding the case. "Two minors may lawfully have vaginal intercourse, but they are felons if they have oral sex until reaching maturity."

And considering that both oral and anal intercourse are currently the preferred methods of having sex by those who've taken "purity pledges," Allender was probably right to suggest in his article that, "nearly half of the teenagers in North Carolina and Virginia are felons."

And as MacDonald notes in his cert petition, "The statute is not limited to public or forced sexual acts; indeed, on its face it applies equally to acts occurring in the home between consenting adults."

MacDonald's course through the courts has been bizarre. The trial court denied his original motion to dismiss, stating, "I don’t find that the due-process clause or the case that you cite would abrogate the law as it relates to juveniles and the code section that they’re charged under, and I don’t find any constitutional violation."

The Virginia Court of Appeals was equally unhelpful, dismissing as "inappropriate" a facial challenge to the sodomy law, and stating that, in that court's opinion, "nothing in Lawrence ... facially invalidates [the sodomy statute]."

"The court also rejected Mr. MacDonald’s as-applied challenge, in which he argued that his conviction was unconstitutional under Lawrence because all parties involved in his alleged offense were above Virginia’s age of consent and therefore under Lawrence's protection," the petition reads. "The appellate court acknowledged that the sodomy statute does not contain an age element but rather 'serves to outlaw the behavior at issue in this case between any parties, regardless of age or consent,' and also acknowledged that Virginia generally allows for people age 15 to 17 to consent to sexual intercourse. Nevertheless, the court concluded that 16-and 17-year-olds are not 'adults' under state law and thus held that the liberty to engage in private sexual conduct described in Lawrence does not protect the parties' conduct in this case."

This last ruling was apparently based on the single sentence in Justice Anthony Kennedy's holding in Lawrence that, "The present case does not involve minors."

The Virginia Supreme Court also rejected MacDonald's appeal, largely on the same grounds as the Court of Appeals.

"Although the court admitted that the sodomy statute contains no age restriction," MacDonald's petition states, "it nonetheless decided that it could 'construe the plain language of [the] statute to have limited application if such a construction will tailor the statute to a constitutional fit.' It did so by holding that the general sodomy statute could be constitutionally applied to prohibit sodomy for persons over the age of 15, even though 15 is the age of consent in Virginia."

Catch-22, anyone?

Having exhausted his state court remedies, MacDonald turned to the U.S. District Court for habeas relief ... and again found none.

"The [Virginia] Court of Appeals' determination is based on clearly established federal law," that court wrote. "As the court noted, Virginia considers persons aged sixteen and seventeen to be children, and the Supreme Court in Lawrence explicitly stated that the ruling did not apply to sexual acts involving children." (Not quite, of course, but why quibble when there are morals to be upheld?)

The Fourth Circuit similarly denied MacDonald's claim, stating that he had "not made the requisite showing" of a "debatable claim of the denial of a constitutional right."

MacDonald's Supreme Court petition is based almost entirely upon Lawrence; notably, the majority's finding that, "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

MacDonald also took issue with the Virginia Supreme Court's rewriting of the state's sodomy law.

"The state court’s approach, however, essentially re-wrote the statute to add a new element that the legislature did not include: that the sodomy must be with a person who is under age 18," the petition states. "In effect, then, the court turned Virginia’s sodomy statute into a statutory-rape law. But Virginia already has a statutory rape law, and statutes prohibiting sodomy with persons age 13 and under, sodomy with persons ages 13 and 14, and contribution to the delinquency of a minor – none of which prohibit the conduct at issue in this case... Thus, when the Virginia legislature addressed sexual conduct involving persons under 18, it chose not to criminalize the behavior for which Petitioner was convicted."

In federal jurisprudence, limiting the wording of a law to achieve constitutionality is permissible, and even encouraged; rewriting it to say something that it didn't originally say is not.

"More importantly, leaving an extremely broad statute on the books, most applications of which would be unquestionably unconstitutional, prevents citizens from knowing in advance whether certain actions violate the law because they cannot know the circumstances under which a court would find the law’s application constitutional," the petition continues, unintentionally implicating the problems that the adult industry has always had with federal obscenity laws as well. "Thus, this Court has been 'wary of legislatures who would rely on [the courts'] intervention, for "[i]t would certainly be dangerous if the legislature could set a net big large enough to catch all potential offenders, and leave it to the courts to step inside" to announce to whom the statute may be applied.' ... Moreover, a statute cannot simply announce that every activity that is not protected under the Constitution is prohibited; it must state specifically what conduct constitutes a criminal offense... Here, if Mr. MacDonald had consulted Virginia law and Lawrence in advance, he would have had no reason to know that his conduct was illegal."

Oh, the ironies of legislating sexual morality!

MacDonald further argues that Virginia's law limiting the offense to sodomy with minors is still unconstitutional under Lawrence, and that in any case, that law doesn't apply to his situation.

"Virginia law defines sodomy as ‘forcible’—that is, non-consensual—only when it is committed with a person age 13 or younger," the petition notes. "Virginia law also prohibits carnal knowledge, including but not limited to sodomy, with a person age 13 or 14. Sex with anyone above age 14, however, does not constitute statutory rape or any other felony; in other words, 'in Virginia, the age of consent is fifteen years.' Although Lawrence left open the possibility that states could limit the ability of 'minors' to engage in sodomy, its focus in doing so was on parties' ability to consent, not on their age."

At bottom, all MacDonald wants to do is to get taken off the sex offender registry so he can stop living in homeless shelters or his truck—both of which are or can be far enough away from minors so that he doesn't violate the terms of his sex offender status—and move back in with his wife, who has a place near Asheville, and become a family again.

MacDonald's petition to the U.S. Supreme Court is particularly well-taken, and if granted and decided in his favor, could conceivably impact how that court deals with (morality-based) obscenity laws in the future.

AVN will continue monitoring this case and report on its outcome.