Last edited: January 04, 2005

Orientation Week: Case Illustrates Skewed Application of Law

Richmond 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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