|Ken Cuccinelli II (R) and State Senator Tom Garrett (R)|
The Republican Party of Virginia - or is it the GOP's puppet master at The Family Foundation - remains obsessed with criminalizing gay sex and stamping out sex acts that do not conform to the so-called "missionary position." How else to describe the mindset behind Senator Thomas A. Garrett's effort to save Virginia's twice invalidated sodomy or "crimes against nature" statute? The problem with Garrett's effort is that, whether intended or not, as amended, the statute so loved by failed gubernatorial candidate Ken Cuccinelli, would criminalize high school students - both gay and straight - who might engage in oral or anal sex. These students would be facing felony charges rather than mere misdemeanor charges. And from past experience, we know all too well that it would be the gays who got prosecuted while a blind eye was turned on the straight couples. Think Progress and The New Civil Rights Movement among others have piled on to Garrett and deservedly so. Here's how I explained Garrett's effort to one reporter:
Here's the language that is at the heart of the issue (the italics represents the new language):A.
If anyAny person who (i) carnally knows in any manner any brute animal, or (ii) 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 is guilty of a Class 6 felony, except as provided in subsection B. The provisions of clause (ii) shall not apply where all persons are consenting adults who are not in a public place and who are not committing, attempting to commit, conspiring to commit, aiding, or abetting any act in furtherance of prostitution.If applied as written, any underage couple - gay or straight - where one or both were under 18 would be looking at a Class 6 felony charge. Contrast this with this statutory provision:§ 18.2-346. Prostitution; commercial sexual conduct; commercial exploitation of a minor; penalties.A. Any person who, for money or its equivalent, (i) commits adultery, fornication, or any act in violation of § 18.2-361 [This is the crimes against nature statute]or (ii) offers to commit adultery, fornication, or any act in violation of § 18.2-361 and thereafter does any substantial act in furtherance thereof is guilty of prostitution, which is punishable as a Class 1 misdemeanor.B. Any person who offers money or its equivalent to another for the purpose of engaging in sexual acts as enumerated in subsection A and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution, which is punishable as a Class 1 misdemeanor. However, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony.Garrett's revision of the Crimes Against Nature statute would criminalize non-prostitution related sex if it involves sodomy - i.e., oral or anal sex
The New Civil Rights Movement summed it up well:. Why the obsession with sodomy? Because the Christofascists at The Family Foundation hate gays and want them to face felony charges rather than misdemeanor charges. Instead of trying to save the sodomy statute, Garrett ought to be amending the second sentence of 18.2-346.B to cover things other than prostitution when underage individuals are involved. That, would solve the supposed emergency. Of course, that would not be consistent with his marching orders from The Family Foundation/Cuccinelli.
Garrett is attempting to resurrect Virginia’s “crimes against nature” statute. Cuccinelli, as Virginia’s AG, tried to convince the U.S. Supreme Court that the law was both necessary or constitutional. He failed.
Of course, the goal behind the bill is to make sex between two people of the same gender more consequential. The bill does not make penile-vaginal sex between minors a felony, because that’s not a “crime against nature.”Think Progress adds:
Oddly, Virginia law permits heterosexual 16 or 17 years old to marry, with parental consent (couples can marry earlier in cases where the girl is pregnant). Under Garrett’s bill, two 17-year-olds could be legally wed but would both become felons if they engaged in oral sex — or even suggested doing so. And with Virginia’s marriage inequality constitutional amendment, a 17-year-old same-sex couple would not only be unable to marry, but would each be guilty of a felony if they engaged in any sexual relations at all.
And the law’s disparate treatment of those engaging in public sex (a misdemeanor, at most) and those engaging in public oral and anal sex (a felony under the Crimes Against Nature law) would also be a concern. A same-sex couple spotted by law enforcement in a park, engaged in oral sex, would be each be guilty of a felony — while an opposite-sex couple having vaginal sex in the same park would not.