Virginia Is for Retro Anti-Sodomy Law Campaigns

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Virginia Is for Retro Anti-Sodomy Law Campaigns
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Virginia Is for Retro Anti-Sodomy Law Campaigns

Virginia Attorney General Ken Cuccinelli's campaign for governor isn't going great. He's behind in at least one poll. He's floating on the outskirts of the still-expanding scandal surrounding Bob McDonnell, the current governor. But Cuccinelli has a plan to combat that. He will run a campaign powered by sodomy. In opposition, of course. Cuccinelli is a Republican.

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It seems as though it's been a long time since being gay was used as a political chit. At least, as a negative one. The shift in gay politics over the past ten years has been remarkable. In 2004, the Republican party leveraged bans on gay marriage in 11 states to bolster conservative turnout — a move that its architect later regretted.

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Cuccinelli would certainly argue that he's not making an anti-gay play. His campaign's new strategy centers around a legal challenge to an appeals court's decision stating that Virginia's "Crimes Against Nature" statute, which bans oral and anal sex, is unconstitutional. The court heavily relied on the Supreme Court's 2003 Lawrence v. Texas decision overturning sodomy laws in reaching that decision.

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Cuccinelli will draw attention to 90 sex offenders who were prosecuted under the statute that he wants to reinstate. The campaign launched a website, VAChildPredators.com, at which Virginians can enter their ZIP code to find nearby sex offenders. Those offenders "may be removed from the Sex Offender Registry if Ken doesn't win this appeal," the site warns, then blames Cuccinelli's opponent for being wishy-washy on the subject. According to VAChildPredators.com, the sodomy law is an "anti-child predators law."

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That's his ostensible argument for keeping it. The case that prompted the appeals court's decision centered on an older man, William MacDonald, who solicited oral sex from a 17 year-old. Ergo: protects kids. But as Mother Jones explained in April, the age of consent in Virginia is 15. Basically, then, the state is trying to wring a felony out of a misdemeanor charge of "causing delinquency."

Because Virginia still has this anti-sodomy law on the books, the state wants to use it against MacDonald and win a felony conviction. The state, however, couldn't prosecute him under this statute if he had engaged in vaginal sex. That is, the state is trying to use a loophole in the law that makes oral, but not vaginal, sex a felony in order to go after this guy.

As Equality Virginia's James Parrish pointed out to the Washington Post, the state could have fixed its law — either changing the age of consent or excising the sodomy aspects — in the 10 years since the Supreme Court ruling.

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Cuccinelli trails Democrat Terry McAuliffe by 4 percentage points in a poll released earlier this week (though one out today has him up slightly). Cuccinelli, too, has been called out for accepting unreported gifts from the donor that is threatening the viability of McDonnell. His campaign, in other words, could certainly be on stronger footing.

Hence the shift in strategy. It's safe to assume that Virginia voters understand the subtext to Cuccinelli's effort: sodomy is bad and gross. As Mother Jones points out, Cuccinelli told a Virginia paper in 2009:

"My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural-law-based country it’s appropriate to have policies that reflect that."

For some voters, Cuccinelli is hoping that his tough-as-nails commitment to locking up criminals and cracking down on sex offenses will earn their votes. For other voters, voters who share his thoughts on natural law, Cuccinelli's new push is an obvious and exaggerated wink. If Cuccinelli can't actually run in 2004, when Bush won the state by eight points, he might as well pretend he is.

Photo: Cuccinelli at an event earlier this year. (AP)

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