THE BLOG

A Grandmother on -- Gasp -- Sodomy

08/01/2013 03:10 pm ET | Updated Oct 01, 2013

Never in my 79 years, nearly 59 of them married to the only man I have ever known, did I imagine being able to say -- much less write -- this:

I am guilty of sodomy.

For that matter, so is my husband, pleasurably so. (Our youngest would have me use more graphic terms; they apply, but I am a 'reticent' white-haired grandmother, moderate in my speech, sometimes.)

We live in Virginia, home base for all our married -- as well as courting -- years. And in Virginia, the state's anti-sodomy law is again front and center. The law describes sodomy as "crimes against nature," which include all oral as well as anal sex, even between consenting adults, and is to be prosecuted as a felony. In other words, ordinary human behavior, criminalized.

Even though the statute is still on the books, as are anti-sodomy laws in fourteen states, it has effectively been unenforceable since 2003. That year, in Lawrence v. Texas, the Supreme Court held that "statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty" in the Fourteenth Amendment's due process clause and thus unconstitutional.

In mid-March this year, responding to a legal challenge, the U.S. Court of Appeals for the Fourth Circuit (located in Richmond) specifically invalidated Virginia's law prohibiting sodomy. The challenge involved a 47-year-old man accused under the anti-sodomy law of criminal solicitation of a minor for oral sex who contended that the "crimes against nature" statute is illegal.

Having the statute invalidated by the Appeals Court could easily have been have been the end of the matter. But it's Virginia. And it's an election year. In Virginia, it's always an election year: federal, even years; state and local, odd (in more than one sense). Because Virginia is a purple state with a tight, bellwether gubernatorial election gaining momentum, all eyes are upon us. So, the present Attorney General and Republican candidate for governor, Ken Cuccinelli, has appealed the Fourth Circuit's decision to the Supreme Court and requested a stay of the ruling pending the appeal. The Chief Justice has asked the other side for a response by next Monday. We shall see.

That I might conceivably be guilty of sodomy had never remotely crossed my mind until the issue bounced brashly into the news. Much of the coverage focused on commonly practiced oral and anal sex between consenting adults being illegal sodomy. Think: Incredulity. Mockery. Ribald hilarity.

My husband and I are not the only ones, I can only assume. Most married couples, as well as folks in other adult consenting relationships, are probably 'guilty' too. Virginia may be for lovers. But under this law, in practice Virginia's lovers would also be, potentially, felons.

I have no idea whether the attorney general and his wife are also felons. Nor do I want to know. In my mind, this is truly private territory, behind closed doors or wherever. But Barney Frank's dictum is that the right to privacy and the right to hypocrisy don't co-exist. And there is more than a whiff of that in the air.

At one level, Cuccinelli's continuing vocal support of this unconstitutional law could be ranked with other silly season, jump-in-people's-bedroom, boggle-the-mind statements: The kind that demonstrate how befuddled some folks are about being human, enjoying sex, how it works, what's consensual, private and okay and what, like forcible, non-consensual sex in any form, is distinctly not. A Texas legislator recently somehow linked aspirin, rape and not getting pregnant together. And there's that candidate with the unfortunately punny name insisting on staying in the mayoral race in New York. In this context, the net effect of the Attorney General's attempt to reinstate the Crime Against Nature Law has been to make Virginia once again a laughing stock, open to legitimate ridicule.

I would be laughing too. Me, guilty of sodomy?

But it isn't funny.

Cuccinelli's rationale, as I understand it, is that the law would not be used against consenting adults, but should be reinstated as an important tool for prosecuting child predators. But that is not what the law says. As it reads, oral and anal sex are felonies. And if the police chose to enforce that (as sheriffs in Baton Rouge, Louisiana, have recently acknowledged doing under similar laws still on their books), I could be guilty.

What outrages me is that this law is a not-even-thinly-disguised attack on homosexuality and plays into only sometimes-coded anti-gay rhetoric. Indeed, all the anti-sodomy laws that remain on the books fit that description. Apparently, legislatures are not removing them even though they are effectively unenforceable because too many politicians fear the effect that would have on their reelection chances.

Cuccinelli's views on homosexuality are widely known. According to the Huffington Post, he told a meeting of the Family Foundation, a Richmond lobby that fights abortion among other issues: "When you look at the homosexual agenda, I cannot support something that I believe brings nothing but self-destruction, not only physically but of their soul."

He has the right to feel that way and, in a nation of free speech, to say it. He is sadly misguided in my view. And in this statement demeans my solid citizen son with a lovely soul. Even if a significant number of my fellow Virginians agree with him, that doesn't make it all right to make consensual acts between adults, no matter what one calls them, illegal. And that is exactly what this law would do again if it were reinstated -- despite the Attorney General's saying it would not be used that way.

As for the excuse for keeping the Crime Against Nature law on the books as a means of prosecuting child sex predators and the Cuccinelli campaign's re-framing it as a child protection law on a website launched to make this as an ongoing issue? Hooey.

There are more effective ways of protecting children. Virginia's age of consent is clear when one person is under 15: any adult, defined as a person 18 or older, who has carnal knowledge of such a minor, including anal and oral sex, is guilty of statutory rape. This same adult can be prosecuted for "causing delinquency of a minor" by having oral or anal sex with a person between 15 and 18, although that is only a misdemeanor. So the attorney general proposes to continue prosecuting the man in his 40s and other sexual predators for engaging in sodomy with 16- and 17-year-olds under the Crime Against Nature law so they can be charged with a felony.

We do not tolerate child predators. Rightly. But to deal with the matter, the Virginia legislature should clarify the age of consent. Make the various forms of adult on a minor sex, defining minor as anyone under 18, statutory rape (at least where there is a more than a three year age gap, which should allow wiggle room for exploratory teens). Put this clarification at the top of the agenda for the legislature's next session. Make it a bi-partisan issue. Let the Crime Against Nature Law lay. But such common sense isn't on the horizon, except for the observations of little old ladies in tennis shoes like me.

A more insidious aspect of this "anti-child predator" business, the speaking-in-code of it, is disgusting. Yes, the immediate case is heterosexual. But the broader implication paints all homosexuality with the predatory behavior brush. And that is unacceptable, even in code.

So, as my protest, I proudly proclaim: "I am guilty of sodomy."

And, I'm willing to bet, Ken Cuccinelli and his wife are too. They're just not willing to own up to it. And if they aren't? They might learn a thing or two about a long, happy, healthy marriage from this grandmother!

I am also willing to bet against Cuccinelli's belief that he has a winning issue by acting as if his move is only to protect children. Virginians have more sense. The larger issue is already moot across the country. Let's hope that Cuccinelli's actions in Virginia are unique, not a cautionary precursor of things to come.

Believe such acts are sinful? OK. Don't do them. Otherwise, consensual adult couples of the Commonwealth, let's enjoy our sodomy with impunity.