Because Virginia still has this anti-sodomy law on the books, the state wants to use it against Mac Donald and win a felony conviction.
But the AG wants the full 15-judge appeals court to hear the case again.
Cuccinelli’s spokeswoman said Wednesday that the case “is not about sexual orientation,” but about “using current law to protect a 17 year-old girl from a 47 year-old sexual predator.” This specific case deals with a man who was prosecuted under the “Crimes Against Nature” statute for having had oral sex with women, a felony offense under that law.
The offense is a Class 4 felony when the defendant is 18 or older, which incurs at least two (and up to ten) years in prison, a fine of up to $100,000, or both.
This offense is a Class 6 felony when the defendant is younger than 18 at least three years older than the victim.
This is because Virginia has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
But in 2004, when a bipartisan group of Virginia legislators tried to change the law so that it would only apply to public sex, sex with minors, and prostitution, Cuccinelli opposed the bill.
“My view is that homosexual acts, not homosexuality, but homosexual acts are wrong,” he told a local paper in 2009. And I think in a natural law based country it’s appropriate to have policies that reflect that. They don’t comport with natural law.” My colleague Adam Serwer has more on Cuccinelli and the crimes against nature law.
Of course, rape that does involve force or an assault is illegal in Virginia and prosecuted as forcible rape.