Like much of the GOP’s thinking on rape, Virginia attorney general and gubernatorial hopeful Ken Cuccinelli’s appeal to preserve the commonwealth’s oral and anal sex ban started out scary. As it’s written, the “Crimes Against Nature” statute Cuccinelli defended looks like your textbook archaic (not to mention homophobic) pre–Lawrence v. Texas sodomy ban. But Cuccinelli, a noted homophobe, promised on his campaign website that he would only use the law to prosecute predators who have oral and anal sex with minors, not “consenting adults acting in private,” which was confusing. Then once everyone started talking about it, it became kind of funny. Oral sex, a felony? Even the biddies on The View were indignant! Now, thanks to the analysis of Slate’s Dahlia Lithwick, it’s firmly in the terrifying camp again.
According to Lithwick, the “real — even original — sin undergirding Cucinelli’s latest legal push” is the judicial activism that would be required to get the unconstitutional sodomy ban to only apply to 16- and 17-year-olds. “In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance,” she writes.
Considering the age of consent in Virginia is 15, his goals have some bizarre consequences. Like, an old dude who had sex-sex with a 17-year-old would be acting legally, but would be a felon if he had oral sex with her. Also:
Virginia could charge any 16- and 17-year-old with felony sodomy simply because they happened to choose oral or anal sex over vaginal sex. That’s a scary prospect for all parents in Virginia, but especially for those parents raising gay teens. Leaving a statute of that sort on the books doesn’t protect children over the age of consent. It criminalizes their choice of conduct and leaves the state to decide when it’s benign.
Lithwick also suggests that treating the federal courts as a stage for an unconstitutional, campaign-season moral agenda might be a massive waste of taxpayer dollars. I would say this might be a good issue for gay teen advocate Lady Gaga to call attention to, but it seems she’s moved on to performance art full time.