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View Diary: Ken Cuccinelli asks court to reinstate Virginia sodomy law. Wait, what? (236 comments)

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  •  well, the statute (9+ / 0-)

    criminalizes heterosexual sodomy, as well.  I am not aware of a candidate ever getting elected on a "blow jobs for nobody" platform.

    He's also shown what a joke the Republican talking point about frivolous lawsuits is.  Not only can't the lower court overturn the Supreme Court, but there's no reason to think its current membership would rule differently from Lawrence.  

    Difficult, difficult, lemon difficult.

    by Loge on Wed Apr 03, 2013 at 12:58:41 PM PDT

    [ Parent ]

    •  He's appealing on a narrow grounds (5+ / 0-)

      His appeal is based on the fact that, in the case in question, the man was convicted of sodomy involving a 17 year old girl.  He's saying that Lawrence doesn't cover sodomite acts with a minor.

      Which is to say he's a jackass barking up the wrong tree and should be working with the legislature to ensure that soliciting and engaging in sexual acts with a minor is punished appropriately.  (I believe statutory rape doesn't cover oral sex here in VA.)

      Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear. ~William E. Gladstone, 1866

      by absdoggy on Wed Apr 03, 2013 at 01:27:45 PM PDT

      [ Parent ]

      •  Interesting (0+ / 0-)

        I found this on the Timeswebsite:

        The age of consent in Virginia is 15, and any sort of sex with someone under that age is statutory rape, a felony. It can also be a crime, but only a misdemeanor, for an adult to have intercourse with someone 15 to 17, if it “contributes to the delinquency of a minor.”

         . . .

        The legal question in Mr. MacDonald’s appeal to the Supreme Court is whether that sentence means Virginia may continue using its general sodomy law in cases involving minors or whether it must enact a new, focused law if it wants to punish sex between adults and minors.

        There is little question that the Virginia could address conduct like Mr. MacDonald’s directly. It could, for instance, raise the age of consent from 15, forbidding all kinds of sexual activity between adults and minors.

        I don't think this survives Lawrence if the statute is facially unconstitutional, but if I put on my lawyer hat, it is possible that Cucinelli's legal arguments are better than they initially seem.

        The problem is that Ken Cucinelli almost certainly also wants to criminalize heterosexual sodomy, or at least hasn't denied it sufficiently.  (There's political upside in "making the sonofabitch deny it," as LBJ said.)

        Difficult, difficult, lemon difficult.

        by Loge on Wed Apr 03, 2013 at 02:06:59 PM PDT

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        •  The court found it facially unconstitutional. (1+ / 0-)
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          Cucinelli is trying to make an "as applied" argument to keep an unconstitutional law in place.

          •  ok, that makes it worse (1+ / 0-)
            Recommended by:

            a facially unconstitutional law is one that is not constitutional in any conceivably application.  If it's constitutional as applied to the situation of consensual oral sex with a minor when it contributes to her (and it's always her) "delinquency," it's void for vagueness.

            Difficult, difficult, lemon difficult.

            by Loge on Wed Apr 03, 2013 at 02:57:12 PM PDT

            [ Parent ]

        •  It's really semantics (0+ / 0-)

          What Cooch is getting at is Kennedy's opinion in Lawrence that the ruling only applies to consentual adult sexual activities. He is apparently asserting that it is still applicable to anyone under the age of 18 even if the age of consent is 15. I dont know what court is going to say that a 17 year old cannot legally consent to oral sex but can legally consent to vaginal sex. But that is what he is arguing.

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