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The Long Life and Now Death of the Virginia Sodomy Statute

Even though the Supreme Court invalidated this country’s sodomy laws ten years ago in Lawrence v. Texas, the State of Virginia has continued to press forward with prosecuting a few people for consensual sex acts. That is until yesterday, when a panel of the Fourth Circuit held the Virginia statue is unconstitutional as applied to any person (the opinion can be read here).

This case is interesting for a variety of reasons, not the least of which is how did Virginia prosecute someone under a statute invalidated a decade ago? Since I know the defendant and his wife, and had some involvement with the case, I will explain how this prosecution happened.

William MacDonald is a 27-year military veteran who served in five combat tours and had no previous criminal convictions prior to being charged in this case. William, who at the time was married and 47 years old, worked at a fire station in rural Virginia, when he allegedly committed oral sex with a 16- and a 17-year old female. I say allegedly because both William, and his wife Carolynn, vigorously dispute the females’ claims and the MacDonalds did not have the necessary funds to hire a good defense, let alone a great one.

Under Virginia laws, William could not be charged with statutory rape because the females were over the age of 15. So, the prosecution instead charged him with whatever else it could find. The prosecutor first charged him with four counts of sodomy (I call this case one). The prosecutor next charged William with a misdemeanor offense of contributing to the delinquency of a minor and the criminal solicitation statute, which provides that anyone over 18 who persuades someone under 18 to commit a predicate felony shall be guilty of the charge (I call this case two). The State alleged that William violated the predicate offense of general sodomy for receiving oral sex—what I mean by “general” is that the statute does not contain age, marital status or sexual orientation clauses limiting its reach. It applies equally to anyone: married, single, heterosexual or homosexual. While most states with general sodomy statutes still on their books have refused to initiate sodomy prosecutions in the wake of the Court’s 2003 decision in Lawrence v. Texas, Virginia has continued to sporadically prosecute and criminalize the very same acts—oral and anal sex—that a large portion of the country commits with regularity.

A court sentenced MacDonald to twelve years in prison with nine years suspended on these two counts. MacDonald served his time, was released from prison on probation, and, perhaps worst of all, forced to register as a sex offender.

MacDonald appealed his conviction to the Virginia Court of Appeals and then the Virginia Supreme Court. Both rejected his claim that the Supreme Court’s Lawrence decision invalidated the Virginia sodomy statute, even though that is the conclusion reached by every other state court that considered its sodomy statute in the wake of Lawrence. But disregarding U.S. Supreme Court precedent, especially decisions implicating civil rights, is nothing new for this state. It is, after all, the place that banned interracial marriage well into the twentieth century.

Ever the fighter, Carolynn MacDonald, William’s wife, began researching the law of habeas corpus because they could not afford to pay for another attorney to fight William’s case. Carolynn helped William file state habeas petitions and when those were denied, they filed a federal habeas in the Eastern District of Virginia.

On the first case, the federal district court rejected MacDonald’s claim that the Virginia State Courts had unreasonably applied Lawrence to the Virginia sodomy statute. Carolynn prepared a certificate of appealability to the Fourth Circuit, but it too was denied.

This is when Carolynn first contacted me. My wife and I operated a small pro bono shop out of our apartment in Omaha, Nebraska, assisting indigent prisoners in finding an attorney to take their case to the Supreme Court. So, I reached out to attorney Jacob Huebert, who agreed to take the case pro bono. Jacob, his then girlfriend and now wife, Allison, and I prepared a petition for certiorari that Cockle Printing filed in late December of 2010. In the petition, we argued that:

Despite Lawrence, the Commonwealth of Virginia has continued to prosecute people under its sodomy statute – which includes a blanket prohibition on all oral and anal intercourse – for acts that are not otherwise illegal. Here, the state convicted Mr. MacDonald of sodomy – and branded him a “sex offender” – for acts of consensual oral sex with a 16-year-old and a 17-year-old, even though those acts did not violate the state’s laws against statutory rape, forcible sodomy, or corruption of a minor.

Along the way, Adam Liptak, from the New York Times, wrote a feature on William’s case. The Court, unfortunately, rejected the petition.

But the MacDonalds were still fighting case number two, the solicitation charge. The Virginia state courts denied the MacDonald’s claims, and so, Carolynn MacDonald was back to filing another habeas petition in federal district court, which promptly denied William’s petition.

Remember what I said about Carolynn being a fighter? Well, she decided to file another pro se certificate of appealability in the Fourth Circuit on behalf of her husband, even though the chances of it succeeding were next to nil. But she filed it anyway. And something even stranger happened. The Fourth Circuit granted it and appointed her two lawyers from the big law firm Dechert L.L.P.

Those two lawyers challenged the predicate sodomy charge, but faced an uphill battle. In order to prevail in a habeas case originating from state court it is not enough to show that the state courts were wrong. Instead, a defendant must show that the state courts unreasonably applied clearly established federal law. To put it differently, the odds are long of prevailing on such a claim. But prevail they did. The Fourth Circuit held that the Virginia sodomy statute is facially unconstitutional.

Pro se victories are rare. And that makes MacDonald’s victory all the more sweet.

It also means that Virginia’s sodomy statute, that dates all the way back to 1778, is now, at last, dead.

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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

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