Stiff Penalty: Local Legislators Find Repealing an Old Law Hard to Swallow
Update: Checking in on Cover Stories Past
December 18-24, 2001
222 South Street, Charlottesville, VA 22902
By Hawes Spencer
Last week, this reporter spotted one of those oh-so-hilarious results of a
slow news day at the [Charlottesville Daily] Progress: an upcoming effort to
retire an antiquated law against defaming "ladies of lofty repute."
Ha ha ha.
But what about the law that’s no laughing matter—the one that
legislatures and courts all over the country have found too antiquated to keep
but which Virginia holds so tenaciously.
Yes, Virginia’s "crimes against nature" statute persists. This
is section 18.2-361, the law that equates consensual anal and oral sexual
contact with bestiality as felonies so heinous that conviction could land the
guilty five years in prison.
While defenders claim enforcement is restricted to the nuisance of sex in
parks, these laws have had their share of cruel consequences. In the infamous
1995 Sharon Bottoms case, the Virginia Supreme Court permitted a lower court
to strip a mother of custody of her son. Why? Because Bottoms, a lesbian, and
her significant other had engaged in oral sex; and that, according to the
Court’s majority opinion, was "felonious." Never mind that
national polls indicate that a majority of American marrieds—at least 80
percent—regularly engage in this activity.
In 1996, a 20-year-old UVA coed spent a night in jail and $6,000 in legal
fees for offering a little oral pleasure to a male friend during a night-time
skinny-dip by a swimming pool. Most recently, a man accused of sodomy in a
Staunton park sting told C-VILLE he didn’t do the deed but pleaded guilty to
misdemeanor charges for fear of a felony conviction.
Since C-VILLE published a cover story on the topic in 1997, five states
have joined the ever-growing crowd of those that have retired their laws
against consensual "crimes against nature." Now, Virginia is one of
just 11 states that outlaw consensual sodomy. In a curious mid-Western
cluster, four other states outlaw only same-sex acts: Kansas, Missouri,
Oklahoma, and Texas.
Will either of the two candidates in the December 18 State Senate race
eliminate this law?
Creigh Deeds, perhaps? He was introduced last Wednesday at a Downtown Mall
event by an early patron of bills to decriminalize consensual sodomy, State
Senator Mary Margaret Whipple (D-Arlington), and indeed Deeds pays lip service
to quashing the statute.
"It’s an archaic law—no question about it," Deeds told this
reporter. Then what about his two votes—one in committee and one on the
House floor—against killing the statute in the year 2000?
Deeds responds with his belief that the law is largely restricted to
Generally, that’s true, but one doesn’t have to be a card-carrying
member of the ACLU to recall Bowers v Hardwick, which involved an
in-the-bedroom arrest. In that 1986 case, a man was arrested when a police
officer, arriving to serve a warrant, found him engaged in sex with another
man. The Supreme Court, in a 5-4 ruling, let the conviction stand—although
late Justice Lewis Powell raised ire and eyebrows in 1990 when the retired
jurist off-handedly told a group of New York University law students, "I
think I probably made a mistake in that one."
Curiously, Republicans, who have in recent years increasingly utilized the
word "libertarian" in their proclamations, have shown some hostility
to what would seem like a simple victimless crime.
"The law’s a hot potato," Northern Virginia legislator Karen
Darner once told C-VILLE. "Most of my colleagues agree in private that
the law’s absurd, but they don’t want to be caught saying that
We tried to get Jane Maddux’s opinion for this story by leaving messages
at home, work, and mobile phone. But the candidate seems to be pursuing an
Perhaps everyone’s just following the lead of the founding fathers. After
all, Virginia got its sodomy law (complete with death penalty) in 1792, and no
less a man than Charlottesville hero Thomas Jefferson wrote that the
appropriate penalty was castration.
SIDEBAR Recent History: Crimes against nature just won’t die
1999: Karen Darner’s (D-Arlington) bill that would decriminalize
consensual sodomy is introduced and tabled in the Courts of Justice Committee.
2000: Darner submits a watered-down version of the above bill, reducing the
penalty for "crimes against nature," excluding bestiality, between
consenting adults from a Class 6 felony to a Class 4 misdemeanor. It narrowly
slips out of the Courts of Justice Committee by a single vote. Two days later,
it is passed by the full House, again by a single vote, with local notables
Paul Harris and Creigh Deeds voting against and Mitch Van Yahres voting for
the measure. Then thrown into a Senate committee, the bill is killed on a 9-6
2001: Darner lets other legislators lead the way. Brian J. Moran
(D-Alexandria), gets a watered-down bill into the Courts of Justice Committee,
but it gets shot down 13-9. Meanwhile, Robert H. Brink (D-Arlington), tries to
introduce a watered-down bill, which Republican leaders assign not to its
usual Courts of Justice Committee but to the Militia and Police Committee,
which tables it.
2002: Darner says that in an effort to win its passage, she’ll introduce
another even-more-watered-down version (stiffer misdemeanor penalties) of the
bill, and she’s hoping for cosponsorship by Arlington Republican Delegate
Jim Dillard. Fellow delegate Brink says he too may offer a similar bill.
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