I never know what to believe in controversies like this, so I looked at the actual documents from the case. The AG is asking the full bench of a federal appeals court to uphold the conviction of a 47-year-old man for trying to force a 17-year-old female to have oral sex, by holding that "Virginia’s “crimes against nature” statute is not facially unconstitutional or unconstitutional as applied to an adult male’s solicitation of a minor female, outside the home, to perform oral sodomy."
All levels of Virginia trial and appeals courts, and the federal district court, agreed with that and upheld the conviction. A panel of the federal appeals court disagreed.
The state points out that in applying the US Supreme Court's Lawrence decision in an earlier case, the court held the statute unconstitutional as applied to the defendants in that case, but also said, “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. . . . The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
These are excerpts from the state's Petition:
The portion of Virginia’s “crimes against nature” statute held facially unconstitutional reads: “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 Class 6 felony . . .” Va. Code Ann. § 18.2-361(A).
That statute was employed as the predicate felony under Va. Code Ann. § 18.2-29, which reprobates and punishes solicitation of a minor to commit a felony: “Any person age eighteen or older who commands, entreats, or otherwise attempts to persuade another person under age eighteen to commit a felony . . . , shall be guilty of a Class 5 felony.”
MacDonald, a forty-seven-year-old married man, telephoned a seventeen-year-old female and arranged to meet her in a Home Depot parking lot in Colonial Heights, Virginia, where he was “to run an errand for his wife.” (App. 4-6, 180, 204, 206, 225.) MacDonald then rode in the young woman’s vehicle to her grandmother’s house, where she left MacDonald in the car to retrieve a book for school. (App. 5, 180, 201-02.) Upon her return, MacDonald solicited fellatio and suggested that they “have sex” in a shed in the backyard. (App. 5, 180.) The young woman refused, and insisted that they return to the Home Depot parking lot, where MacDonald had left his vehicle. (App. 5, 180.) Upon their return, MacDonald, who is six feet, two inches tall, weighs approximately two-hundred- thirty pounds, and is a U.S. Marine Corps and Army veteran, (App. 130, 241, 243, 245), “pushed her up against the hood of her car and started kissing and groping her. She pushed him away and went home.” (App. 36, 180.) MacDonald knew she was seventeen. (App. 5.)
The matter came to light when MacDonald “filed a report with the Colonial Heights police maintaining that [the young woman] had abducted and sexually assaulted him” by performing oral sodomy upon him “‘against his will.’” (App. 5.) Because of this report, MacDonald subsequently was charged with and pled guilty to the misdemeanor offense of filing a false police report, Va. Code Ann. § 18.2-461. (App. 5-6, 227, 243.) For soliciting the minor female, MacDonald was indicted for violating Va. Code Ann. § 18.2-29, which criminalizes “[a]ny person age eighteen or over” “command[ing], entreat[ing], or otherwise attempt[ing] to persuade a person under age eighteen to commit a felony,” making it a Class 5 felony.3 (App. 241.) The predicate felony for the indictment was Virginia’s “crimes against nature” statute, Va. Code Ann. § 18.2-361(A), in this case that portion making “carnally know[ing a] male . . . by or with the mouth,” a Class 6 felony. (App. 241).
The Circuit Court for the City of Colonial Heights denied MacDonald’s Motion to Dismiss, reasoning “that a litigant may challenge the constitutionality of a law only as it applies to him or her” and noting that this Court “in Lawrence was mindful of this distinction” between facial and as-applied rulings. The circuit court thus concluded that Lawrence did not “extend the constitutionally protected zone to cases in which the defendant acts without the consent of a seventeen-year- old victim.” (App. 227-28.) Accordingly, the circuit court rejected MacDonald’s challenge to the constitutionality of Virginia’s sodomy statute, and, following a bench trial, found MacDonald guilty of soliciting a minor to violate the same. (App. 6, 225, 228.) It subsequently sentenced MacDonald to ten years in prison, nine of which were suspended, a sentence that also “compelled [him] to register as a sex offender.”5 (App. 3, 6-7.)