Sex Life May Be Used Against Judges
Key Lawmaker Says Virginia Anti-Sodomy Law a Factor
The Daily Press,
January 15, 2003
7505 Warwick Blvd, Newport News VA 23607
By Terry Scanlon and Jessie Halladay, Daily Press
A key Virginia lawmaker said Tuesday that engaging in anal or oral sex
might disqualify a person from being a judge because both activities violate
Del. Robert F. McDonnell, a Virginia Beach Republican who is chairman of
the state legislature’s House Courts of Justice Committee, also said that
while such behavior alone would not disqualify someone from being a judge,
"It certainly raises some questions about the qualifications to serve as
Virginia’s "crimes against nature" law bans all oral and anal
sex regardless of the gender of the parties involved. It has been criticized
as an antiquated statute that intrudes into private lives and that is likely
to be used only against gay people. Repeated attempts to repeal the law have
McDonnell made the comments, which drew immediate criticism from legal
scholars and gay rights activists, during an interview about the continuing
controversy surrounding the reappointment of Newport News Circuit Judge
Verbena Askew. Askew is to appear Friday before a joint meeting of the House
and Senate Courts of Justice Committees. McDonnell said he doesn’t plan to
ask her about her sex life at the hearing; he’s more interested in whether
she honestly answered a questionnaire asking if she had ever been "a
party to a civil proceeding."
McDonnell’s committee must endorse Askew for reappointment if she is to
serve a second eight-year term. Her term expires in March.
In questioning her reappointment, lawmakers have said they have heard
anonymous complaints about Askew’s courtroom demeanor, but nothing has been
more damaging to Askew’s chances for another term than an out-of-court
settlement of a sexual-harassment complaint between the city of Hampton and a
woman Askew used to supervise.
A former Newport News Drug Court official alleged that Askew, who oversaw
the court at the time, had propositioned her. The woman, who worked for the
city of Hampton, complained to the Hampton personnel department. The city
hired an attorney who specializes in employment law to investigate the
allegations, and she found them to be invalid.
The accuser then claimed that her Hampton supervisor and other city
employees failed to protect her from harassment, and retaliated against her
for complaining about it. To settle the complaint, the city paid $64,000 in
2001, including $10,000 to the woman’s lawyer. The settlement included a
statement that the city was not admitting that the woman’s claims were true.
At about the same time, Askew and her accuser signed a separate letter of
understanding that specified that neither woman could sue the other or make
disparaging remarks about the other. Askew has denied the woman’s
Nothing in the woman’s complaint suggests that Askew had any physical
contact with her or that the judge has ever violated the anti-sodomy law.
McDonnell said the settlement, and Askew’s failure to mention it in a
questionnaire submitted to the General Assembly, are more important issues.
When told of McDonnell’s comments Tuesday, Askew cited Virginia’s
Canons of Judicial Conduct, which forbid judges from talking to the media
about specific cases and from publicly campaigning for a judicial appointment
or renomination. The canons are a guideline for how judges should behave, and
violations can result in removal from office.
"I will be happy to address any of their concerns on Friday,"
Askew said of the committee.
Asked if she had violated the crimes against nature law, Askew refused to
Asked if he had ever violated the law, McDonnell said, "Not that I can
But the activity is illegal, McDonnell said, and judges must be expected to
obey the law.
"There is certain homosexual conduct that is in violation of the
law," McDonnell said. "I’m not telling you I would disqualify a
judge per se if he said he was gay. I’m talking about their actions."
McDonnell stressed that he does not know whether Askew is a lesbian.
"I have no direct evidence of her sexual orientation other than
innuendo in the community and the sexual-harassment complaint," McDonnell
Sen. Kenneth Stolle, R-Virginia Beach, chairman of the Senate Courts of
Justice Committee, and state Sen. Thomas K. Norment, a James City Republican
who represents part of Newport News, say they also have heard comments about
the fact that Askew’s accuser is a woman.
"I have received some comments along that vein," Norment said.
"I have summarily dismissed those comments as being irrelevant."
Stolle, who has been Askew’s loudest critic in the General Assembly, said
Askew’s sexual orientation is not an issue to him.
The executive director of the Virginia chapter of the American Civil
Liberties Union, Kent Willis, said there’s no relationship between a person’s
sexual orientation and whether they would make a good judge.
"Whether someone is gay or lesbian should have absolutely no bearing
on his ability to be a judge," Willis said.
Willis said the same standard should be applied to married male judges.
"Probably 90 percent of the judges are breaking the law," Willis
McDonnell said it would be just as bad if a heterosexual male judge
violated the anti-sodomy law. But he said he’s never seen evidence of that
and he doesn’t plan to start asking.
"If we start bringing every judicial candidate in and asking them
about their sexual orientation we’ll make a mockery out of the law,"
McDonnell, 48, has served in the House of Delegates since 1992. A socially
conservative attorney, he is considered one of the leading Republicans in the
House and a candidate for attorney general in 2005.
Several pieces of high-profile legislation bear his fingerprints, and he
was on the short list of Republicans who could have become House speaker after
last year’s resignation of S. Vance Wilkins Jr.
McDonnell declined to pursue the position, citing his family and business
commitments and his aspirations for higher office.
McDonnell is Catholic, a graduate of Notre Dame and Boston University, and
received his law degree from Regent University, founded by Christian
broadcaster Pat Robertson.
During a hotly competitive 1999 race, McDonnell received $5,000 in campaign
contributions from Robertson.
Gay rights advocates were enraged by the news of McDonnell’s comments.
"I don’t believe sexual orientation has one thing to do with ability
to serve as a judge," said Joseph Price, chairman of the board for
Equality Virginia, a gay rights advocacy organization, which is holding its
annual reception for lawmakers in Richmond Thursday night.
"There are hundreds, if not thousands, of elected officials and
members of the judiciary who routinely violate the crimes against nature
act," he said.
Law Professor Anthony D’Amato of Northwestern University’s law school
in Chicago said since the law is rarely, if ever, enforced in Virginia against
consenting adults, it doesn’t seem right for McDonnell to raise the issue in
relation to Askew.
Michael Adams, attorney for Lambda Legal, a national organization working
for gay rights, said this incident "is one more example of how these
unconstitutional laws are used to mistreat people."
Adams said using this law acts as a pretext for discrimination.
"There is no correlation between a person’s sexual orientation and
their ability to be a judge," Adams said. "The process of choosing
judges should be beyond political reproach and beyond discrimination."
Additionally, Adams said, whether or not Askew or any other member of the
judiciary violated this law, either homosexually or heterosexually, should not
affect one’s fitness to be a judge.
"It has never been the case that anybody who might break the law is
not fit to serve as a judge," said Adams, who pointed to judges who get
speeding tickets as an example.
"This is not about that law. This is about discrimination against gay
Thirteen states, including Virginia, have sodomy, or "crimes against
nature" laws on the books. In Virginia, that law applies to both same-sex
and heterosexual couples.
. Daily Press staffers Keith Rushing, Hugh Lessig and Pernell Watson
contributed to this report. Contact Terry Scanlon at 247-7821 or via e-mail at
firstname.lastname@example.org. Contact Jessie Halladay at 247-4799 or via e-mail at
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