Orientation Week: Case Illustrates Skewed Application of Law
Times-Dispatch, January 20, 2003
Box 85333, Richmond, VA 23293-0001
Fax: 804-775-8072 or 775-8090
By A. Barton Hinkle
Here at Don Quixote Central, the time has come for the annual rant about
Virginia’s crimes-against-Nature law. This year the catalyst is the case of
Verbena Askew—the state’s first black female Circuit Court judge, who may
have lost her seat by the time these words appear. On Friday, Ms. Askew
endured an extraordinary seven-hour hearing held by a joint meeting of the
General Assembly’s Courts of Justice Committees. The reason she was singled
out from among 60 judges up for reappointment revolves around a
sexual-harassment complaint, settled in 2001, brought by former drug-court
administrator Brenda Collins, and Ms. Askew’s failure to disclose the matter
on an Assembly questionnaire that asks whether a judge is, or ever has been,
party to a civil proceeding.
According to accounts in the Newport News Daily Press, Ms. Askew and
her accuser became friends in early 1998. The two exchanged e-mails, went
shopping, and had lunches and dinners together. According to Ms. Collins, at a
1999 Miami conference Ms. Askew said she wanted to be more than friends; she
wanted to be intimate. The conversation was interrupted, and upon returning to
Virginia Ms. Askew allegedly apologized. The judge denies both making the pass
and apologizing for it.
After Ms. Collins filed her complaint, the city of Hampton hired a lawyer
with McGuireWoods to investigate. The lawyer found Ms. Collins’ complaint
groundless, and said that even if her allegations were true, they amounted to
no more than one proposition, an apology, and "no adverse job
action." Ms. Collins then went to the Equal Employment Opportunity
Commission, alleging that city employees did not protect her from harassment
and retaliated against her for complaining about it. Hampton settled. Ms.
Askew’s name does not appear in the settlement and she did not sign it.
Republican members of the General Assembly have made much about the
non-disclosure. State Senator Ken Cuccinelli grilled Ms. Askew about it on
Friday, and Senator Ken Stolle cites it as the reason for his objection to Ms.
Askew’s reappointment. And the GOPers might be concerned about the Vance
Wilkins precedent, in which they unceremoniously dumped their House Speaker
after reports came to light he had paid a woman at least $100,000 to settle a
harassment claim out of court.
But in the murky matter of Ms. Askew there are ugly eddies not present in
the Wilkins affair. Last week Delegate Robert McDonnell asserted that certain
sexual behavior could disqualify a person from being a judge. "There is
certain homosexual conduct that is in violation of the law," he said in
an interview about Ms. Askew. "I’m not telling you I would disqualify a
judge per se if he said he was gay. I’m talking about actions."
But in Ms. Askew’s case there was no allegation even of improper
touching, let alone carnal knowledge. McDonnell admits he has "no direct
evidence of her sexual orientation other than . . . the sexual harassment
complaint." So why bring it up? Ms. Askew’s sexual orientation has no
bearing on her ability to perform her job. (Asked if he had ever violated the
crimes-against-Nature statute, McDonnell oddly replied, "Not that I can
recall." Who forgets something like that?)
McDonnell says it would be equally egregious for a heterosexual male judge
to violate the crimes-against-Nature law, but he has no evidence of that
ocurring, and does not plan to make any inquiries. "If we start bringing
every judicial candidate in and asking them about their sexual orientation we’ll
make a mockery of the law," he said.
WHOA. SEXUAL orientation?
Virginia’s anti-sodomy law makes no mention of sexual orientation. It
does not outlaw "certain homosexual conduct." It forbids carnal
knowledge "by the anus or by or with the mouth"—and voluntary
submission to the same—by "any person." In other words, a married
couple in the privacy of their home can violate the law and, theoretically,
face up to five years in prison. If McDonnell is concerned about actions, not
orientation, then why wouldn’t he grill each judicial candidate about his or
her sexual activity?
Answer: Because, obviously, he is concerned with sexual orientation. Which
highlights one of the deplorable facts about the state’s
crimes-against-Nature law: It is wielded disproportionately against gays and
lesbians. Supporters of the statute cite lascivious behavior in parks and
elsewhere as a reason to keep it, but such behavior can be punished under
other statutes. The law is kept on the books chiefly as a means for social and
religious conservatives to signify their disapproval of homosexuality. Like
McDonnell, they talk about conduct, but really object to orientation itself.
They have a right to that view, and McDonnell’s position does not make
him—as a columnist for another newspaper called him—"Taliban
Bob." But his reluctance to grill judicial candidates about their sexual
activity suggests he knows that what consenting adults do in the privacy of
their homes, violating no one’s rights, is none of his concern and none of
the General Assembly’s. The state simply has no business regulating the most
intimate acts of the bedroom—regardless of the genders of those
participating. And the lawmakers know it. (Perhaps they hope the Supreme Court
will spare them the necessity of a spine transplant and render the point moot
when it rules on a Texas case later this year.)
The real mockery of the law is to keep one on the books, knowing it is
applied unequally, just because of an animus toward a sexual minority.
Whatever state legislators do with Ms. Askew, they should consign the sodomy
statute to oblivion.
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