Sodomy laws are not as simple as one would think.
Under the Common Law, sodomy consisted of anal intercourse. Traditionally courts and statutes referred to it as a “crime against nature” or as copulation “against the order of nature.” In the United States, the term eventually encompassed oral sex as well as anal sex. The crime of sodomy was classified as a felony.
Here in Canada, anal sex has been removed from the Criminal Code with three exceptions: when one or both parties are below the age of consent, when consent is not given and when the act occurs in pubic. Public can mean the presence of one other person, so be careful in threesomes.
In the US, there are still states where sodomy laws are still on the books, and others where they apply only to homosexuals
One of the states where sodomy is still illegal is Virginia and Attorney General Ken Cuccinelli is prosecuting a case under those laws.
The particular case involves a 47 year old man who solicited sex from a 17 year old young women. The age of consent for sexual activity in Virginia is 18. Cuccinelli charged William Scott MacDonald under the sodomy section of the Virginia Crime Code. The case was declared unconstitutional by the court which referenced the 2003 case of Lawrence v. Texas; the case in which the Supreme Court declared sodomy laws unconstitutional.
Lawrence v. Texas specifically referred to homosexual activity and Cuccinelli claims that by enforcing the law equally against both genders, and specifically involving a minor, he is not violating anyone’s constitutional freedoms.
I most certainly don’t want to imply that non-consensual sex with a minor should be acceptable in any instance. However, the use of outdated sodomy laws to prosecute what is clearly a case of sexual assault is certainly a step in a very wrong direction.
On the bright side, I suspect that the appeals court will side with the original ruling:
“We are confident, however, that we adhere to the Supreme Court’s holding in Lawrence by concluding that the anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.”
Because they found it to be facially unconstitutional, that means it is unconstitutional in all situations and could not be used to convict MacDonald of the solicitation crime.
Cuccinelli, currently running for governor is one of the politicians who believes we are still living in the 19th century.