Last edited: December 08, 2004

Stiff Penalty: Local Legislators Find Repealing an Old Law Hard to Swallow

Update: Checking in on Cover Stories Past

C-Ville Weekly, December 18-24, 2001
222 South Street, Charlottesville, VA 22902
Fax: 434-817-2758

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 "public displays."

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 publicly."

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 avoid-the-media strategy.

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 vote.

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.


[Home] [News] [Virginia]