Virginia's "Crimes Against Nature" Statute Found Unconstitutional
Virginia Code Section 18.2-361 bans "crimes against nature". The statute makes engaging in certain consensual sexual activities a felony. These sexual activities include one regularly practiced by many couples. While this law is rarely prosecuted, it plays a very important role in divorce cases. In Virginia, a spouse can be denied spousal support if it can be proved he or she engaged in a "crime against nature". For a client who does not wish to pay spousal support, or for a client who wishes to receive spousal support, whether or not a "crime against nature" can be proven becomes very important.
The fact that "crimes against nature" are illegal makes proving that they occurred very difficult. The reason is that under the Fifth Amendment a spouse and his/her partner can both refuse to testify about activity which could be prosecuted as a crime. Because "crimes against nature" can be prosecuted (even if they rarely are), the spouse and his/her partner are able to refuse to testify. As a result, it is very hard to prove that the "crime against nature" actually occurred. The Fourth Circuit Court of Appeals, in McDonald v. Commonwealth, has ruled that Va. Code Section 18.2-361 is unconstitutional. The Court's analysis is convoluted, but it basically says that the Supreme Court's 2003 decision in Lawrence v. Texas should be taken to mean that an earlier Supreme Court decision upholding a Georgia sodomy law was wrongly decided. In other words, because the Supreme Court may have indicated it should have struck down the Georgia law, it would likely strike down the Virginia law, and therefore the Virginia law is unconstitutional.
The decision of the Fourth Circuit Court of Appeals (a federal court) is not technically binding on Virginia trial courts. In other words, Virginia trial courts are not required to follow the ruling. But, the decision is very likely to be persuasive. As a result, I would not be surprised if in the near future a Virginia trial court ruled that 18.2-361 is unconstitutional.
The fact that "crimes against nature" are illegal makes proving that they occurred very difficult. The reason is that under the Fifth Amendment a spouse and his/her partner can both refuse to testify about activity which could be prosecuted as a crime. Because "crimes against nature" can be prosecuted (even if they rarely are), the spouse and his/her partner are able to refuse to testify. As a result, it is very hard to prove that the "crime against nature" actually occurred. The Fourth Circuit Court of Appeals, in McDonald v. Commonwealth, has ruled that Va. Code Section 18.2-361 is unconstitutional. The Court's analysis is convoluted, but it basically says that the Supreme Court's 2003 decision in Lawrence v. Texas should be taken to mean that an earlier Supreme Court decision upholding a Georgia sodomy law was wrongly decided. In other words, because the Supreme Court may have indicated it should have struck down the Georgia law, it would likely strike down the Virginia law, and therefore the Virginia law is unconstitutional.
The decision of the Fourth Circuit Court of Appeals (a federal court) is not technically binding on Virginia trial courts. In other words, Virginia trial courts are not required to follow the ruling. But, the decision is very likely to be persuasive. As a result, I would not be surprised if in the near future a Virginia trial court ruled that 18.2-361 is unconstitutional.
Comments